Betrothal
BETROTHAL
BETROTHAL (Heb. שִׁדּוּכִין, shiddukhin).
Definition
In Jewish law shiddukhin is defined as the mutual promise between a man and a woman to contract a marriage at some future time and the formulations of the terms (tena'im, see below) on which it shall take place. In general parlance, as opposed to legal terminology, it is known as erusin (Kid. 63a, Tos.), which is in fact part of the marriage ceremony proper (see *Marriage, Ceremony of). The concept of shiddukhin can entail either a promise by the intending parties themselves or one made by their respective parents or other relatives on their behalf (Kid. 9b; Sh. Ar., eh 50:4–6 and 51). The sages regarded kiddushin (consecration; see *Marriage) without prior shiddukhin as licentiousness and prescribed that "he who enters into a marriage without shiddukhin is liable to be flogged" (tj, Kid. 3:10, 64b; tb, Kid. 12b; Maim. Yad, Ishut, 3:22 and Issurei Bi'ah, 21:14; Sh. Ar., eh 26:4). Shiddukhin as such has no immediate effect on the personal status of the parties – it being only a promise to create a different personal status in the future (Resp. Rosh 34:1; Beit Yosefeh 55). Nor does the promise give either party the right to claim specific performance from the other – since a marriage celebrated in pursuance of a judgment requiring the defendant to marry the plaintiff is repugnant to the basic principle that a marriage requires the free will and consent of both the parties thereto.
Gifts
(Heb. סִבְלוֹנוֹת, sivlonot). The Talmud (Kid. 50b) discusses the question whether the bride's acceptance of gifts from her bridegroom is to be regarded as an indication that kiddushin has already been celebrated between them – thus making it necessary for her to receive a divorce, on the grounds of "doubt," in the event she does not marry him and wishes to marry someone else. The halakhah was to the effect that the matter be left dependent on local custom so that any "doubt" as to whether or not kiddushin had already taken place would depend on whether or not there was any custom in the particular place where the parties resided to send such gifts before or after kiddushin. From the time that it became the general custom for parties to initiate their intended ties with each other by way of shiddukhin (when the bridegroom would send gifts to his bride) and for the kiddushin and nissu'in (the marriage proper; see *Marriage) to take place simultaneously at a later date, there would usually be no opportunity for the bridegroom to send such gifts to the bride after the kiddushin but before the nissu'in, so the halakhah was then to the effect that the giving of gifts per se implied no suspicion of kiddushin as mentioned above (Sh. Ar., eh 45:2; Arukh ha-Shulḥaneh 45:16–18. See also *Minhag.
Tena'im
(Heb. תְּנָאִים, "conditions"). It is customary, but not generally or necessarily so, for the tena'im, or conditions of the shiddukhin, to be reduced to writing – whereby such matters would be prescribed as the date and place of the proposed marriage, the financial obligations of the parties, i.e., the *dowry (Heb. נְדֻנְיָה, nedunyah) to be brought by the bride, or the period for which her father undertakes to provide for the couple. All such obligations undertaken at the time of the shiddukhin are valid and binding, even without a formal or symbolic kinyan (see Modes of *Acquisition), as obligations of this nature are "in these matters effected by mere verbal arrangement" (Ket. 102a; Kid. 9b; See also *Contract). It is also customary to stipulate a sum of money as a penalty to be paid in the event of a breach of promise without good cause. In the Talmud such written instruments are termed shetarei pesikta – abbreviated by the posekim to "shetarei" or "tena'ei shiddukhin" or simply "tena'im" (Rashi, ad loc.; Sh. Ar., eh 51: Arukh ha-Shulḥan, eh 51:13; see also forms: A.A. Rudner Mishpetei Ishut, 178f, and Gulak, OẒar 1–19 (nos. 1–4), 362 (no. 403); see also *Shetar).
Breach of the Shiddukhin
consequences of breach
The party committing a breach of promise, i.e., by not marrying the other party, may be liable to compensate the other party for any actual damage sustained, such as the expenses of the preparations for the marriage, and may also be obliged to return the gifts he received on the occasion of the shiddukhin, whether from the other party or from relatives and friends (Sh. Ar., eh 50:3–4; Resp. Rosh, 35:8; Arukh ha-Shulḥan, eh 50:20). The offending party may further be liable to pay the penalty stipulated in the tena'im – or, if not so stipulated, such amount as a court may determine as proper in the circumstances – having particular regard to the degree of mental suffering, shame, and public degradation suffered by the other party as a result of the breach of promise (Tos. to bm 66a; Sh. Ar., eh, 50:3–4; Ba'er Heitev 15). In cases where the sum stipulated in the tena'im to be paid by way of compensation exceeds the value of the actual damage caused, so as to make it a real penalty, the posekim debate the legal validity of such a condition on the grounds that the promise is tainted with *asmakhta, i.e., that a promise to pay such a sum by way of compensation might possibly not have been meant seriously, since both parties would have been at the time so certain and confident of fulfilling their respective commitments. Some of the authorities, mainly Ashkenazi, took the view that the law requiring one who shamed another to compensate the latter should be strictly applied in these cases as well, and that the plea of asmakhta avails only if the stipulated sum is a highly exaggerated one (Tos. to bm 66a and to Kid. 8b; Resp. Rosh 34:2,4; Remaeh 50:6 and Beit Shemu'el, ibid.; Arukh ha-Shulḥan, eh 50:21f.; RemaḤm 207:16 and Siftei Kohen, ibid.). Other sages, primarily Sephardi, held that the plea of asmakhta would avail the offending party even in a breach of promise case involving shiddukhin (Maim. Yad, Mekhir 11:18; Sh. Ar., Ḥm 207:16; Beit Yosefeh 50; see also pdr 3:131–154). In order to avoid any doubts, however, in the Middle Ages the Sephardi authorities introduced the practice of two separate agreements between the parties – one whereby each party unconditionally undertook to pay to the other a fixed sum in the event of breach of promise and another whereby each party released the other from the former undertaking upon the fulfillment of all the obligations stipulated in the tena'im (Sh. Ar., Ḥm, ibid., and eh 50:6; Resp. Maharit, 131). Even if the tena'im had not been reduced to writing the court would adjudge the offending party to pay such compensation as may seem proper in the circumstances, having regard to the standing of the parties, provided the terms of the shiddukhin had been evidenced by kinyan between the parties.
defenses against liability
Any justifiable reason for withdrawing from the shiddukhin is a valid defense to a claim for compensation. Since the matter in issue is a promise to marry, involving a personal tie between the parties, the court will tend to regard any ground for not entering the marriage as reasonably justified, even if it is not directly attributable to the defendant. For example, if the tena'im were agreed by the parents and subsequently the son or the daughter involved refused to accept them, such refusal would be regarded as justified and would not involve him or her in any liability (Resp. Rosh 34:1; Tur and Sh. Ar., eh 50:5, Arukh ha-Shulḥan, eh 50:29; pdr 5, 322–9). However, if the grounds on which the defendant bases his withdrawal were known to him prior to the shiddukhin or if they became known to him thereafter and he did not immediately withdraw, he will be regarded as having waived his objections and such grounds will not later avail him as a defense.
Validity of the Tena'im after Marriage (Nissu'in)
Noncompliance with the terms of the tena'im after the marriage has taken place does not exempt the parties from the duties imposed on them by law vis-à-vis each other as husband and wife. Thus, the husband is not absolved from his duty to maintain and provide a home for his wife because she or her parents may have failed to honor their undertaking to provide a home for the couple – the husband's duty being imposed on him by law (see *Marriage) and being unconnected with any rights deriving from the shiddukhin (Bayit Ḥadash eh 52; Remaeh 52:1, and Ba'er Heitev 5). On the other hand, the existence of the marriage is not necessarily to be regarded as constituting a waiver and cancellation of the obligations created by the shiddukhin. In order to avoid such a contention, it is customary for the parties to draw up "secondary" or "new" tena'im at the time of the kiddushin, whereby they reaffirm the original tena'im – or else stipulate specifically in the *ketubbah that the marriage is based on the terms of the original tena'im; the latter form being the customary procedure in the ketubbah adopted in the State of Israel (A.A. Rudner, Mishpetei Ishut, 179). Such procedures provide either party with a clear cause of action for claiming the specific performance of all obligations undertaken in the tena'im after the marriage has taken place. According to some posekim, there is no need for the original tena'im to be specifically recalled at the time of the kiddushin – as it is presumed that the kiddushin was entered upon in accordance with the terms of such tena'im (pdr 1:289–313; 4:193–9, 289–304).
Customs
The ceremony and the writing of the agreement is called in Yiddish teno'im shrayben. The term knas-mahl ("penalty meal") was also used because of the penalty (usually 50% of the promised dowry) stipulated in the document to be paid by the party guilty of breach of the promise to marry (Sh. Ar., eh 51).
Though of secondary importance from an halakhic point of view, the "betrothal" remains a significant ceremony in marriage arrangements. According to *Elijah b. Solomon, the Gaon of Vilna, a bridegroom, rather than break the engagement, should marry and then divorce his bride. In certain Jewish circles, a marriage is not contracted with a person who was a party to a broken engagement.
Among the Oriental Jews, the engagement ceremony is a very elaborate affair. Kurdish Jews had the custom of hatlabba ("bidding the bride") and those of *Djerba indulged in great festivities. After the engagement, bride and bridegroom would exchange presents, and on Passover, Shavuot, and Sukkot, the groom would send his bride clothing, jewelry, and choice fruits. Similarly among Ashkenazi Jews, as sivlonot the groom usually sent the bride clothing or jewelry, and she reciprocated with a new tallit or a richly embroidered tallit bag she had made herself. At the Ashkenazi tena'im ceremony, it is customary to break a plate; the act is parallel to the crushing of the glass at the wedding ceremony.
bibliography:
Buechler, in: Festschrift… Lewy (1911), 110–44; Gulak, Yesodei, 2 (1922), 82; 3 (1922), 14–19, 22, 29, 45; Gulak, Oẓar, 1–19 (nos. 1–14), 362 (no. 403); idem, in: Tarbiz, 3 (1931–32), 361–76; 5 (1933–34), 126–33, Herzog, Instit, 1 (1936), index; Ch. Albeck, in: Kove… M. Schorr (1944), 12–24; et, 2 (1949), 114; 6 (1954), 610; 7 (1956), 138–49; pd 12:1121–204; 16:2737–40; B. Schereschewsky, Dinei Mishpaḥah (19672), 22–31; idem, Kenas u-Fiẓẓuyim Ekev Hafarat Ḥozim le-fi Dinei Yisrael (1960); B. Cohen, in: paajr, 18 (1949), 67–135; republished in his Jewish and Roman Law, 1 (1966), 279–347, addenda 777–80; H. Schauss, The Lifetime of a Jew (1950), 129–31, 150–2, 158–61, 165–9, 182–6; Elon, Mafteaḥ, 326ff. M. Elon. Ha-Mishpat Ha-Ivri (1988) 1: 371, 438, 533, 633: idem, Jewish Law (1994) 1, 449, 2: 535, 648, 784-5. add bibliography: B. Lipshitz, "Matanah Leḥud, Bein Kinyan le-Hitḥayvut," in: Dinei Yisrael, 12, (1984), 125.
[Ben-Zion (Benno) Schereschewsky]