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
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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 and approval.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!