There is a well known argument between R' Moshe and R' Heinken regarding people who are married in secular courts and live together as husband and wife, whether we have a chazaka of "ein adam o'seh..." to create a marriage. Although often R' Moshe comes up with a novel leniency, in this case the simple reading of Shulchan Aruch (Even Haezer 149:5, 6) supports R' Moshe; the issue of "ein adam o'seh...." does not apply by 2 strangers who move in with one another. The Shulchan Aruch states explicitly that when the marriage takes place in arkaos "even if they have yichud with one another every day in the presence of many, we are not choshesh for kiddushin".
One way or the other, I would like to suggest based on the gemara today and Rashi that "ein adam o'seh b'ilaso...." does not automatically create a kiddushin. Rather, rashi explains many times on the page (primarily in d.h. lo ta'os) that since a person would not want his bi'ah to be z'nus, at the time of bi'ah he would realize that the conditions that were previously stipulated may not have been kept, and he is conciously wants this bi'ah to be a bi'ah l'sheim kiddushin. However, if we are sure that this person has no idea that bi'ah can actually serve as a ma'aseh kiddushin (he missed the first mishna in kiddushin), it would not be possible to create a ma'aseh kiddushin with just the um'dana alone. Therefore, in most situations where the husband is not very well learned, all should agree that the bi'ah will not serve as an automatic kiddushin.
2 comments:
I often claim that the reason the rambam brought the לפני מתן תורה אדם פוגע אישה בשוק etc. is to tell us that EVEN today this would be marriage.
the understanding is like this. Marriage by definition is a closeness between man and woman in a home like setting. the old way was to move in together, the torah was מחדש that there is another way to accomplish this by doing kidushin. by giving a ring, even if the closeness is not there, still they are married, but if people revert to the OLD way they are also married.
WOnder if anyone says this.
Regarding my post:
I found that R' Moshe (Even Haezer 1:76) at the end of the teshuva makes this point. Even if we assume that a person would not want a b'ilas z'nus (which nowadays is itself debatable), it would only turn into a ma'aseh kiddushin in a situation where a person realized #1 that the original act of kiddushin (in secular courts) was not effective and #2 at the time of the bi'ah has intent for the purpose of kiddushin. However, if he thinks that the original kiddushin was valid, even if he knows that bi'ah can qualify as a kiddushin, he will not intend for that, rather continue al da'as kiddushin harishonim.
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