Casamento (Ishut) — Rambam

Casamento (Ishut)

Casamento (Ishut) — Rambam no Beth HaMidrash: o texto hebraico e sua tradução em português, com Rashi e os grandes comentaristas. Grátis, online.

קֹדֶם מַתַּן תּוֹרָה הָיָה אָדָם פּוֹגֵעַ אִשָּׁה בַּשּׁוּק אִם רָצָה הוּא וְהִיא לִשָּׂא אוֹתָהּ מַכְנִיסָהּ לְתוֹךְ בֵּיתוֹ וּבוֹעֲלָהּ בֵּינוֹ לְבֵין עַצְמוֹ וְתִהְיֶה לוֹ לְאִשָּׁה. כֵּיוָן שֶׁנִּתְּנָה תּוֹרָה נִצְטַוּוּ יִשְׂרָאֵל שֶׁאִם יִרְצֶה הָאִישׁ לִשָּׂא אִשָּׁה יִקְנֶה אוֹתָהּ תְּחִלָּה בִּפְנֵי עֵדִים וְאַחַר כָּךְ תִּהְיֶה לוֹ לְאִשָּׁה שֶׁנֶּאֱמַר (דברים כב יג) "כִּי יִקַּח אִישׁ אִשָּׁה וּבָא אֵלֶיהָ":Before the Torah was given, when a man would meet a woman in the marketplace and he and she decided to marry, he would bring her home, conduct relations in private and thus make her his wife. Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. [Only] after this, does she become his wife. This is [alluded to in Deuteronomy 22:13]: "When a man takes a wife and has relations with her...."

וְלִקּוּחִין אֵלּוּ מִצְוַת עֲשֵׂה שֶׁל תּוֹרָה הֵם. וּבְאֶחָד מִשְּׁלֹשָׁה דְּבָרִים אֵלּוּ הָאִשָּׁה נִקְנֵית. בְּכֶסֶף. אוֹ בִּשְׁטָר. אוֹ בְּבִיאָה. בְּבִיאָה וּבִשְׁטָר מֵהַתּוֹרָה. וּבְכֶסֶף מִדִּבְרֵי סוֹפְרִים. וְלִקּוּחִין אֵלּוּ הֵן הַנִּקְרָאִין קִדּוּשִׁין אוֹ אֵרוּסִין בְּכָל מָקוֹם. וְאִשָּׁה שֶׁנִּקְנֵית בְּאֶחָד מִשְּׁלֹשָׁה דְּבָרִים אֵלּוּ הִיא הַנִּקְרֵאת מְקֻדֶּשֶׁת אוֹ מְאֹרֶסֶת:This process of acquisition fulfills [one of] the Torah's positive commandments. (Positive Commandment 213) and Sefer HaChinuch (Mitzvah 552) include this as one of the Torah's 613 commandments. The process of acquiring a wife is formalized in three ways: through [the transfer of] money, through [the transfer of a] formal document and through sexual relations.[The effectiveness of] sexual relations and [the transfer of a] formal document have their origin in the Torah [itself], while [the effectiveness of transfer of] money is Rabbinic in origin. 4b derives the concept that the transfer of money is an effective means of formalizing a marriage bond from a gezerah shavah, a correlation between two verses in the Torah, indicating that this practice also has its source in the Torah.The Maggid Mishneh and the Kessef Mishneh draw attention to the Rambam's statements in Sefer HaMitzvot (General Principle 2), which state that any law that is not explicitly stated in the Torah, but rather derived through the Thirteen Principles of Biblical exegesis, is considered to be Rabbinic in origin (midivrei soferim). This classification does not, however, in any way diminish the status of this practice, and it is as if it were explicitly stated in the Torah. Thus, a marriage bond formalized through the transfer of money has the same status as one formalized through either of the other means mentioned by the Rambam.Rav Kapach differs and states that the Rambam altered the text in his later years, and the correct version states, "All three are from the Torah." In explanation, he draws attention to the Rambam's Commentary on the Mishnah (Kiddushin 1:1) and to one of the Rambam's responsa, and on this basis differs with the above principle.He maintains that whenever the Rambam uses the expression midivrei soferim, he means that the practice is Rabbinic in origin and does not have the status of Torah law. The only practices that are considered to be ordained by the Torah are those explicitly stated in the Torah or mentioned by the Sages as having the status of Torah law.In this context, he explains the Rambam's approach. Originally [as evidenced by the Rambam's statements in Sefer HaMitzvot (Positive Commandment 213)], the Rambam thought that sexual relations are the only kiddushin that are effective according to the Torah. For not only the effectiveness of the transfer of money, but also that of the transfer of a legal document is derived by the Sages only through Biblical exegesis. Afterwards, on the basis of certain passages that state that the effectiveness of the transfer of a legal document has the status of a Torah practice, the Rambam changed his opinion and wrote that the transfer of a document is also effective according to the Torah. This opinion is reflected in the Commentary on the Mishnah and the original version of the Mishneh Torah. Even later, the Rambam accepted the opinion that the effectiveness of the transfer of money also stems from the Torah itself. This is reflected in Chapter 3, Halachah 20, and the corrected text mentioned above.(See Birkat Avraham, Responsum 44, in which the Rambam's son, Rabbenu Avraham, substantiates Rav Kapach's version of the Mishneh Torah.)This process of acquisition is universally referred to as erusin ("betrothal") or kiddushin ("consecration"). And a woman who is acquired in any of these three ways is referred to as mekudeshet or me'ureset.

וְכֵיוָן שֶׁנִּקְנֵית הָאִשָּׁה וְנַעֲשֵׂית מְקֻדֶּשֶׁת אַף עַל פִּי שֶׁלֹּא נִבְעֲלָה וְלֹא נִכְנְסָה לְבֵית בַּעְלָהּ הֲרֵי הִיא אֵשֶׁת אִישׁ וְהַבָּא עָלֶיהָ חוּץ מִבַּעְלָהּ חַיָּב מִיתַת בֵּית דִּין. וְאִם רָצָה לְגָרֵשׁ צְרִיכָה גֵּט:Once this process of acquisition has been formalized and a woman has become mekudeshet, she is considered to be married even though the marriage bond has not been consummated and she has not entered her husband's home. Should anyone other than her husband engage in sexual relations with her, he is liable to be executed by the court. If her husband desires to divorce her, he must compose a get [a formal bill of divorce].

קֹדֶם מַתַּן תּוֹרָה הָיָה אָדָם פּוֹגֵעַ אִשָּׁה בַּשּׁוּק אִם רָצָה הוּא וְהִיא נוֹתֵן לָהּ שְׂכָרָהּ וּבוֹעֵל אוֹתָהּ עַל אֵם הַדֶּרֶךְ וְהוֹלֵךְ. וְזוֹ הִיא הַנִּקְרֵאת קְדֵשָׁה. מִשֶּׁנִּתְּנָה הַתּוֹרָה נֶאֶסְרָה הַקְּדֵשָׁה שֶׁנֶּאֱמַר (דברים כג יח) "לֹא תִהְיֶה קְדֵשָׁה מִבְּנוֹת יִשְׂרָאֵל". לְפִיכָךְ כָּל הַבּוֹעֵל אִשָּׁה לְשֵׁם זְנוּת בְּלֹא קִדּוּשִׁין לוֹקֶה מִן הַתּוֹרָה לְפִי שֶׁבָּעַל קְדֵשָׁה:Before the Torah was given, when a man would meet a woman in the marketplace, and he and she desired, he could give her payment, engage in relations with her wherever they desired, and then depart. Such a woman is referred to as a harlot., a woman one designates as a sexual partner but who is not consecrated as a wife, see Hilchot Melachim 4:4.When the Torah was given, [relations with] a harlot became forbidden, as [Deuteronomy 23:18] states: "There shall not be a harlot among the children of Israel." (Negative Commandment 355) and Sefer HaChinuch (Mitzvah 570) include this as one of the Torah's 613 commandments. Therefore, a person who has relations with a woman for the sake of lust, without kiddushin, receives lashes as prescribed by the Torah, because he had relations with a harlot.

כָּל שֶׁאָסַר בִּיאָתוֹ בַּתּוֹרָה וְחַיָּב עַל בִּיאָתוֹ כָּרֵת וְהֵם הָאֲמוּרוֹת בְּפָרָשַׁת (ויקרא טז א) "אַחֲרֵי מוֹת" הֵן הַנִּקְרָאוֹת עֲרָיוֹת וְכָל אַחַת מֵהֶן נִקְרֵאת עֶרְוָה כְּגוֹן אֵם וְאָחוֹת וּבַת וְכַיּוֹצֵא בָּהֶן:Whenever it is forbidden to engage in relations from the Torah, and engaging in relations makes one liable for karet - i.e., the [forbidden relationships] mentioned in Parashat Acharei Mot, such as a person's mother, his sister, his daughter and the like - these relations are called arayot, and each particular forbidden relationship is called an ervah., Chapter 1, and those for which one is liable for karet and for which lashes are given are discussed in Hilchot Sanhedrin, Chapter 19.

Mishneh Torah, Marriage.1