Why does the Rambam begin Hilchos Ishus with a history lesson of what marriage looked like before Matan Torah?

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 giving of the Torah, it would be that if a man happened upon a woman in the marketplace and they wanted to marry each other, he would bring her into his house and consummate the marriage between them privately, and she would be his wife. Once the Torah was given, Israel was commanded that if a man wanted to marry a woman, he would acquire her first through witnesses, and afterwards she would be his wife, as it says, "When a man takes a woman and comes (sleeps with) to her..." (Deuteronomy 22:13).

What Halacha is the Rambam trying to teach us?

Please cite a source.

  • 1
    Why does the Rambam begin Hilchos Ishus and What Halacha is the Rambam trying to teach us are two very different questions. Consider just asking the first, and not limiting it to the second.
    – mevaqesh
    Jun 8, 2017 at 6:23
  • 2
    He's trying to explain why Biah is the only kinyan that predates shtar and kesef is biah. As a prelude to his opinion that shtar and kesef are M'divrei sofrim Jun 8, 2017 at 6:25
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    @mevaqesh Stringing these two questions together implies pretty clearly that the embedded assumption is that all material in Mishneh Torah is intended to teach Halacha. Given that assumption, the first question boils down to the second, so it's perfectly appropriate to ask them together. Bochur613, if I'm right about this assumption, I encourage you to edit it explicitly into the question.
    – Isaac Moses
    Jun 13, 2017 at 18:11
  • Actually he is probably wrong about that assumption. Unless one uses an all inclusive definition for halakha, in which case the term becomes meaningless and counterproductive in the question. Obviously the onus of proof lies on the poster, not the commenters, but see for example the article referenced here as a nice place to start learning about the topic. If you are interested in learning more about it, consider asking a separate question (assuming its on topic, not a dupe, etc.), and I will try to post an answer. @IsaacMoses
    – mevaqesh
    Jun 13, 2017 at 18:16
  • @mevaqesh It's OK for wrong assumptions to be in a question post. They can then be impeached in answer posts.
    – Isaac Moses
    Jun 13, 2017 at 18:17

1 Answer 1


The straight forward answer is provided by the Maggid Mishna that this establishes what constitutes a marriage for non-Jews.

The Lubavitcher Rebbe (Likkutei Sichos Vol. 39 p. 30ff) adds that this also establishes something about the nature of marriage - that it is fundamentally about a man and woman living together and not an acquisition like property (as in Bereishis 2:24 - ודבק באשתו). The Halachic implication of this is that even after the Torah establishes the concept of Kiddushin making a woman forbidden to all others, if a non-Jew did this procedure it would be ineffective.

However, we are left with the question of why this wasn't stated in Hilchos Malachim Chapter 9 along with the other laws of a Ben Noach, as the Rambam does with Hichos Gerushin.

For this and other reasons the Rebbe says that the Rambam is holding that the concept of Nissuin is fundamentally equivalent for a non-Jew and a Jew (even though there are some differences) - it has to be them living together as husband and wife. This is why the Rambam rejects a Chupas Nidda, and this is why the Rambam brings it here and not in Hilchos Malachim - because it is telling us something about the principles of Nissuin for a Jew as well.

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