Is Kinyan (Purchase) of Woman in the Marriage Document
only a Metaphor?
Biblische Metaphern, die sich mit männlicher Dominanz, der Unantastbarkeit der Familie und Frauen beschäftigen, die sich zum Wohle der Gemeinschaft in ihr Schicksal ergeben müssen, finden ihre konkrete Entsprechung im jüdischen Gesetz. Das Grundgesetz, das sich auf die Ehe anwenden lässt, wird kinyan (Akquisition) genannt. Ein Akt, bei dem eine Person das Recht auf Besitz oder Gebrauch im Tausch gegen eine (meist finanzielle) Entschädigung erlangt. Dieses Konzept ist zentral für die ketubah, den Heiratsvertrag.
Die problematischen Aspekte dieser Heiratszeremonie haben ihre Wurzeln sowohl in biblischen Quellen wie auch in den Midraschim. Die Verwendung einer Metaphorik die vom Männlichen dominiert wird ist nicht harmlos; dies zum Beispiel dann, wenn Gott als Ehemann wahrgenommen wird, der "sein Volk" kontrolliert. Als Konsequenz liegt es daher in der Natur der Dinge, dass die Welt an sich als von Männern dominiert verstanden wird.
The Marriage Document (The Ketuva Text)
On the ______day of the week, the _________day of the month ______ in the year five thousand seven hundred and ______ since the creation of the world, the era according to which we reckon here in the city of _________________ that ________ son of _________ said to this virgin (betulta virgin is usual, or substitute woman, bride, divorcee, widow, convert, or other, as appropriate) _________daughter of _____. “Be my wife according to the practice of Moses and Israel, and I will cherish, honor, support and maintain you in accordance with the custom of Jewish husbands who cherish, honor, support and maintain their wives faithfully. And I here present you with the marriage gift (mohar) of virgins (betulechi), (two hundred) silver zuzim, which belongs to you, according the law of Moses and Israel; and I will also give you your food, clothing and necessities, and live with you as husband and wife according to universal custom.” [His level of obligation varies to some degree with his income and her background; a rich man has to give his wife more than a poor man has to give his wife. Likewise, her rights to sexual encounters vary with his profession; an idle man has more responsibility than a man who works away from home for lengthy periods.] And Miss_____, this virgin (betulta) consented and became his wife. The trousseau that she brought to him from her (father's) house in silver, gold, valuables, clothing, furniture and bedclothes, all this ________, the said bridegroom accepted in the sum of (one hundred) silver pieces, and ______ the bridegroom, consented to increase this amount from his own property with the sum of (one hundred) silver pieces, making in all (two hundred) silver pieces. And thus said __________, the bridegroom: “The responsibility of this marriage contract (ketuvta), of this trousseau (nedunya), and of this additional sum, I take upon myself and my heirs after me, so that they shall be paid from the best part of my property and possession that I have beneath the whole heaven, that which I now possess or may hereafter acquire. All my property, real and personal, even the shirt from my back, shall be mortgaged to secure the payment of this marriage contract (shtar ketuvta), of the trousseau, and of the addition made to it, during my lifetime and after my death, from the present day and forever.” _______, the bridegroom, has taken upon himself the responsibility of this marriage contract, of the trousseau and the addition made to it, according to the restrictive usages of all marriage contracts and the additions to them made for the daughters of Israel, according to the institution of our sages of blessed memory. It is not to be regarded as a mere forfeiture without consideration or as a mere formula of a document. We have followed the legal formality of symbolic delivery/ritual acquisition (kinyan) between ______the son of _______, the bridegroom and _______ the daughter of _______ this (virgin), and we have used a garment legally fit for the purpose, to strengthen all that is stated above, and everything is valid and confirmed.  [The usual method is kinyan sudar, in which the groom gives an object of some kind to the witnesses, and in so doing, accepts upon himself the obligations he has specified.] 
13 A man marries a woman and cohabits with her. Then he takes an aversion to her 14 and makes up charges against her and defames her, saying, “I married this woman; but when I approached her, I found that she was not a virgin.” 15 In such a case, the girl’s father and mother shall produce the evidence of the girl’s virginity before the elders of the town at the gate. 16 And the girl’s father shall say to the elders, “I gave this man my daughter to wife, but he has taken an aversion to her; 17 so he has made up charges, saying, ‘I did not find your daughter a virgin.’ But here is the evidence of my daughter’s virginity!” And they shall spread out the cloth before the elders of the town. 18 The elders of that town shall then take the man and flog him, 19 and they shall fine him a hundred [shekels of] silver and give it to the girl’s father; for the man has defamed a virgin in Israel. Moreover, she shall remain his wife; he shall never have the right to divorce her. 20 But if the charge proves true, the girl was found not to have been a virgin, 21 then the girl shall be brought out to the entrance of her father’s house, and the men of her town shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. Thus you will sweep away evil from your midst.
It is time to take a look at the sources themselves. I have put them in chronological order, starting with the Torah, then the Ketuvim, and finally the Midrash.
The Biblical Origin of kinyan
In Exodus 20:13 we are told: “You shall not covet your neighbor’s house: you shall not covet your neighbor’s wife, or his male or female slave, or his ox or his ass, or anything that is your neighbor’s.” In Exodus 21:22 it is written: “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one shall be fined according as the woman’s husband [ba’al ha-ishah] may exact from him, the payment to be based on reckoning.” Thus the husband is not only owner of his wife; he is also the owner of her pregnancy. In Exodus 21:28 the word for husband, ba'al, implies ownership as well as lordship, in the case of the owner of the ox who gores a person to death. A price of virginity is paid to the father of the “bride” in both Genesis and in Exodus:
“Then”, Shechem said to her father and brothers, “do me this favor, and I will pay whatever you tell me. Ask of me a bride-price ever so high, as well as gifts, and I will pay what you tell me; only give me the maiden for a wife” (Genesis 34:11-12). “If a man seduces a virgin for whom the bride-price has not been paid, and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weigh out silver in accordance with the bride-price for virgins” (Exodus 22:15-16).
The husband’s right to perform sexual intercourse, is called liv’ol [to take what is one's property] and the wife's status of "married woman" is referred to as be’ulat ba’al [i.e., she belongs to the owner by virtue of his having her]. This is a continuation of the verbs lakach [to acquire] and ba’al [to possess] used in Deuteronomy 24:1 to describe this act:
“A man takes a wife [yikach] and possesses her [be-alah]. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.”
Thus when she marries, the father's property rights are transferred to the husband. When she is divorced, the husband renounces his right to his (sexual) use of the property and announces that she is “now permitted to any man”. The use of ba'al to denote husband of course raises linguistic concerns because of its primary meanings of owner and master.
Hosea is the first prophet to describe God's relationship to Israel in metaphorical terms as a marriage. [14a ] Such a marriage metaphor is not found in the literature of any other ancient religion beside Israel's. Only the Hebrew God alone was described as husband and lover and only the people of Israel was described as a bride or wife. Hosea’s protagonist is himself, the husband who casts out his wife for being unfaithful to him and then takes her back – with the understanding that “she” will behave. God, not Ba’al, is Israel’s husband and lover and He demands complete loyalty of his people. The covenant between God and Israel made at Mount Sinai is a marriage; idolatry, which breaks the covenant, is adultery. This metaphor is developed in Hosea 2 when the prophet/God rebukes his wife/people for acting unfaithfully.
4 Rebuke your mother, rebuke her – for she is not my wife and I am not her husband – and let her put away her harlotry from her face and her adultery from between her breasts.
He threatens to punish her if she continues to misbehave.
5 Else will I strip her naked and leave her as on the day she was born: And I will make her like a wilderness, render her like desert land, and let her die of thirst.
He reproves her for thinking that other men/gods can supply her needs better than Him:
“I will go after my lovers, who supply my bread and my water, my wool and my linen, my oil and my drink.”
8 Assuredly, I will hedge up her roads with thorns and raise walls against her, and she shall not find her paths. 9 Pursue her lovers, as she will, she shall not overtake them; and seek them as she may, she shall never find them.
And then she will come to the full realization that she is better off with her first husband/God.
“I will go and return to my first husband, for then I fared better than now.” 10 And she did not consider this: It was I who bestowed on her the new grain and wine and oil; I who lavished silver on her and gold – which they used for Baal.
Yet nothing she does can save her from the anger of God for the first betrayal:
And none shall save her from Me, 13 and I will end all her rejoicing: Her festivals, new moons, and Sabbaths – all her festive seasons. 14 I will lay waste her vines and her fig trees, which she thinks are a fee she received from her lovers; I will turn them into brushwood, and beasts of the field shall devour them.
Like a suspicious husband, God cannot tolerate unfaithfulness, even when the people come back to Him:
15 Thus will I punish her for the days of the Baalim, on which she brought them offerings; when, decked with earrings and jewels, she would go after her lovers, forgetting Me – declares the Lord.
16 Assuredly, I will speak coaxingly to her and lead her through the wilderness and speak to her tenderly. 17 I will give her her vineyards from there, and the Valley of Achor as a plow land of hope. There she shall respond as in the days of her youth, when she came up from the land of Egypt.
And once they have made up (or rather once he has decided to let her come back) and he has given her gifts, he promises her a marriage on his terms. One can argue that by using the marriage metaphor we are allowed a glimpse at the compassionate side of God. Because of the intimate relationship, God is more accessible to His people. Not only do we have descriptions of an intimate relationship with God, but also, we have allusions to the idyllic, pre‑expulsion relationship of equality between God and humanity.
18 And in that day – declares the Lord – you will call [Me] Ishi, and no more will you call Me Baali. 19 For I will remove the names of the Baalim from her mouth, and they shall nevermore be mentioned by name. 20 In that day, I will make a covenant for them with the beasts of the field, the birds of the air, and the creeping things of the ground; I will also banish bow, sword, and war from the land. Thus I will let them lie down in safety. 21 And I will espouse you forever: I will espouse you with righteousness and justice, And with goodness and mercy, 22 and I will espouse you with faithfulness; then you shall be devoted to the Lord.
However, unlike the relationship between Adam and Eve, the relationship between God and Israel is one-sided. God would like the uncomplicated pre‑expulsion relationship, before the people “knew” [yada] about choice. God promises the returning nation an intimate covenantal relationship with Him despite the fact that knowledge [da’at] was the reason Adam and Eve were punished (see Genesis 3). When God decides to espouse Israel forever with faithfulness, the people will “know” [yada] only God. If Israel wants to know more than just God, if “she” wants to take fruit from the tree again, the implication is that she will again be expelled from the Garden of Eden, stripped naked and left as on the day she was created – with nothing (Hosea 2:5). God is telling Israel/Gomer that she can either be intimate with Him (her husband) or with other gods/lovers but not with both of them at the same time. She can have knowledge of good and evil from Him or from others. If she chooses others, He will destroy her. So despite the potential glimpse of a compassionate God, His covenant is accessible to His people only on His own terms. God's ownership is clear. The people/women who respond, who are exhausted by the previous abuse and whose identity is negative (lo ruhama and lo ammi) passively respond to God when he takes them back.
25 I will sow her in the land as My own; and take Lo-ruhamah back in favor; and I will say to Lo-ammi, “You are My people”, and he will respond, “[You are] my God”.
Song of Songs
Rachel Adler, in particular, has used the Song of Songs to demonstrate that an egalitarian “mutuality” between two sexual partners is possible, in contrast to many Biblical and Talmudic sources that portray normative sexuality as one of male dominance over women. 
In my previous work I pointed to the Song of Songs as an antidote to the battering metaphors of Hosea 2 and wrote in a footnote, that it “is probably the only completely non-sexist account of a relationship between a man and a woman”. 
Fokkelien Van Dijk Hemmes argued about the intertextuality between the texts of Hosea 2 and the Song of Songs, and suggested that we replace “the quotations back into the love songs from which they were borrowed, [so that] the vision of the woman in this text is restored”. 
Here is a sampling of some problematic verses:
Song of Songs 3:1-4
Upon my couch at night I sought the one I love – I sought, but found him not. “I must rise and roam the town, through the streets and through the squares; I must seek the one I love.” I sought but found him not. I was found by the watchmen who patrol the town. “Have you seen the one I love?” Scarcely had I passed them when I found the one I love. I held him fast, I would not let him go till I brought him to my mother’s house, to the chamber of her who conceived me.
Song of Songs 5:6-7
I opened the door for my beloved, but my beloved had turned and gone. I was faint because of what he said. I sought, but found him not; I called, but he did not answer. I was found by the watchmen who patrol the town; they struck me, they bruised me. The guards of the walls stripped me of my mantle.
Song of Songs 8:5-7
Who is she that comes up from the desert, Leaning upon her beloved? Under the apple tree I roused you; It was there your mother conceived you, There she who bore you conceived you. Let me be a seal upon your heart, Like the seal upon your hand. For love is fierce as death, Passion is mighty as Sheol; Its darts are darts of fire, a blazing flame. Vast floods cannot quench love, Nor rivers drown it. If a man offered all his wealth of his house [הוֹן בֵּיתוֹ] for love, He would be laughed to scorn [בּוֹז יָבוּזוּ]. 
So although there might be much that is promising in the Song of Songs, there are also very problematic texts, especially if we take into account that the rabbinic tradition relates to this book as a love story between God and Israel. Some of the verses from the Song are shockingly similar to Hosea 2, verses 5 & 8, where the woman is stripped naked and left to her own devices. Her roads are hedged with thorns and walls are raised against her. Amazingly there are still those modern rabbis who would argue that these acts of prophetic desperation are “about love, not wife-battering. They are about forgiveness, not punishment… [and about the] man who has the right to … strip her, humiliate her, etc., but doesn’t, and, instead, seeks reconciliation”. 
kinyan in Midrashic Texts
Besides the passage in which Israel is referred to as one of God’s four possessions there is another long passage in a midrash on the Song of Songs which refers to the seventy names by which Israel, Jerusalem and God are known. For each attribute there is an explanation. Thus Jerusalem is known as Beulah (owned or taken by God), since there is no one to support her except God – or Hevtzibah (God’s desired), because God wants her from all the nations; or lo Azuvah not abandoned, because she will never be abandoned. Among God’s attributes is kana (jealous) for he is a jealous, vengeful and angry God (Nahum 1:2).
Linking the Midrashic texts to Legal Literature
We have seen differing views of those who believe that the act of acquisition is symbolic, and just a formality and those who view the wife as having been “acquired”, and “belonging” to her husband. The wording of the Mishnah supports those who argue that the wife is her husband’s property: “The woman is acquired in three ways …,” proves that the woman is perceived as an object. We have seen that the Hebrew language, which uses the term ba’al (master or owner), points to the husband’s ownership.
Ayelet S. Cohen, a rabbi, who is committed to inclusiveness, finds the idea of traditional Jewish weddings troubling, where “a man acquir[es] a silent woman whose price is based on her sexual history”.  She points out that “liberal Jews de-emphasize the halakhic ritual and use secular romantic images and translations that gloss over the literal meaning of the text”. She says these solutions may make us feel good, but they don’t address the problem. She would like to “transform the Jewish wedding so that it is not a celebration of male dominance and heterosexual triumphalism.” She used a blessing for her own marriage which celebrates monogamy and healthy sexuality and emphasizes the virtues of righteousness, justice, loving-kindness and compassion. 
Jealousy and Possession
In English it is very easy to move from the idea of a possessive husband to a jealous husband. The very word “possessive” is defined as “jealous”. In Hebrew, one would think that it is even easier, since the words share a binary root of “K” “N”. Having an associative mind, I searched the Bar Ilan Data Base looking for several key words (נקמה,קנאה,קנה קנין) and created a chart.
 All of the commentary in brackets and small print is from http://www.hasoferet.com/weddings/stamtext.shtml.
 Rosalind Gill, “Relativism, Reflexivity and Politics: Interrogating Discourse Analysis from a Feminist Perspective,” in Feminism and Discourse: Psychological Perspectives, edited by Sue Wilkinson and Celia Kitzinger (London, Thousand Oaks, New Delhi: SAGE Publications, 1995), p. 166.
 Mary Daly, Beyond God the Father (Boston: Beacon Press, 1973), p. 13, as quoted in Judith Plaskow in Standing Again at Sinai (San Francisco: Harper and Row, 1990), p. 126.
 Gail Labovitz, “Follow the Money: Bride Price, Dowry, and the Rabbinic Ketubbah,” talk given at AJS December 17th, 2006.
 Gail Labovitz, “A Woman is Acquired”: Slavery and Jewish Sexual Ethics,” Shma, October 2008.
 Leonard Gordon, “Marriage and Family,” review of Labovitz’s book, Marriage and Metaphor. S’hma (June 2010), p. 16.
 Gail Labovitz, Marriage and Metaphor: Constructions of Gender in Rabbinic Literature (Lanham, MD: Lexington Books, 2009).
Tirzah Meacham (leBeit Yoreh) “Legal-Religious Status of the Married Woman,” http://jwa.org/encyclopedia/author/meacham-tirzah.
 Judith Hauptman, Rereading the Rabbis: A Woman’s Voice (Boulder, CL: Westview Press, 1998), p. 69.
 Hauptman, pp. 4-5.
 Judith Romney Wegner, Chattel or Person? The Status of Women in the Mishnah (New York: Oxford University Press, 1988), pp. 14-15.
 Wegner, p. 44.
 Ilana Pardes, Countertraditions in the Bible (Cambridge, MA: Harvard University Press, 1992), p. 127.
For further information on the subject of the imagery of marriage to describe the relationship between God and Israel see Gerlinde Baumann, Love and Violence. The Imagery of Marriage for YHWH and Israel in the Prophetic Books (Collegeville, MN: Liturgical Press, 2003).
 Rachel Adler, Engendering Judaism: An Inclusive Theology and Ethics (Philadelphia: Jewish Publication Society, 1998), p. 135.
 Naomi Graetz, Silence is Deadly: Judaism Confronts Wifebeating (Northvale, NJ: Jason Aronson, 1998), p. 42.
 Fokkelien Van Dijk‑Hemmes, “The Imagination of Power and the Power of Imagination: An Intertextual Analysis of Two Biblical Love Songs: The Song of Songs and Hosea 2,” Journal for the Study of the Old Testament 44 (1990), p. 86. See also Gerson Cohen, “The Song of Songs and the Jewish Religious Mentality,” Studies in the Variety of Rabbinic Cultures (Philadelphia: Jewish Publication Society, 1991), p. 6.
 Karen Miller Jackson, “Reshut Hakallah: The Symbolism of the Chuppah,” Sh’ma.com (June 2010), p. 4.
 Pesikta deRav Kahane, Chapter 1 as translated by Karen Miller Jackson.
 Op. cit., p. 5.
 See Naomi Graetz, “The Haftarah Tradition and the Metaphoric Battering of Hosea's Wife,” Conservative Judaism (Fall, 1992), p. 29-42; “God is to Israel as Husband is to Wife,” in Athalya Brenner (editor), A Feminist Companion to the Latter Prophets, (Sheffield: Sheffield Academic Press, 1995), p. 126-145; and revised for Naomi Graetz, Unlocking the Garden: A Feminist Jewish Look at the Bible, Midrash and God (Piscataway, NJ: Gorgias Press, 2004).
 There are many more texts that make the same point which emphasize the problematics of using the Song of Song as a solution for parity between the sexes. I have highlighted those texts which have negative metaphors.
 Benjamin Scolnic, “Bible Battering,” Conservative Judaism, XLV: 2 (1992), p. 48.
 My paraphrase of the legend on Bereshit (Buber Version), Chapter 8:3.
 מדרש תהלים (בובר) מזמור עג ד"ה [ד] שתו בשמים"
אמר ר' שמואל בר נחמני לפי שבעולם הזה הזכר מסבב את הנקבה, אבל לעתיד הנקבה תסבב את הזכר, שנאמר נקבה תסובב גבר”
 Midrash Tanhuma (Warsaw), Parashat saw 14.1 (Hebrew).
Mary Joan Winn Leith, “Verse and Reverse: The Transformation of the Woman, Israel, in Hosea 1‑3,” in Peggy L. Day (ed.), Gender and Difference in Ancient Israel, (Minneapolis: Fortress Press, 1989), p. 101.
 Leith, “Verse and Reverse”, p. 103.
 Melanie Malka Landau, “Sanctifying Endings,” in S’hma (June 2010), pp. 11-12.
 Ibid. pp. 11-12.
 Eliezer Berkovits, Tenai be’Nissuin uve’Get (in Hebrew). Jerusalem: Mossad HaRav Kook, 1966.
 This is mentioned in Landau's article. For full text, see Meir S. Feldblum, “The problem of agunot and mamzerim — A suggested overall and general solution” (in Hebrew) Dinei Israel 19, pp. 203-216.
 BT Ketubbot 93a; Maimonides, Laws of Emissaries and Partnership 4:1–3, 10:5.
 Rachel Adler, p. 170 and continues in Chapter 5, “B’rit Ahuvim: A Marriage Between Subjects”.
 Ayelet S. Cohen, “Birkat Eirusin: A Blessing for Holy Sexuality,” S’hma (June 2010), p. 14.
 Ibid: this is adapted from a blessing by Tamara Ruth Cohen (the author’s sister) and her partner Gwynn Kessler.
 The handout appears in “Is Kinyan Only a Metaphor? Metaphor and Halakha: The Metaphor of Kinyan,” in Brad Horowitz (ed.), Proceedings of the Rabbinical Assembly, 98h Annual Convention Volume LX (New York: Rabbinical Assembly, 2000), pp. 175-186.
 “Bliss of Biblical Love”, paper presented at the ISOT in Helsinki, August, 2010. This paper now appears as James A. Diamond, “Love’s Human Bondage: A Biblical Warning”, in Azure (Spring, 2011), pp. 41-60.
 Third chapter entitled “Rebellious Women and Husband Owned sexuality” of her forthcoming book.
 Diamond, p. 50.
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Naomi Graetz recently retired from thirty-five years of teaching at Ben Gurion University. She is the author of S/He Created Them: Feminist Retellings of Biblical Stories; Silence is Deadly: Judaism Confronts Wifebeating; and Unlocking the Garden: A Feminist Jewish Look at the Bible, Midrash and God.
© Naomi Graetz, 2011, firstname.lastname@example.org, ISSN 1661-3317