Mishneh Torah, Marriage 4

Sugya Map

• Issue: The asymmetry of Kiddushin under duress (ones).
• Nafka Mina: Can a man's forced Kiddushin be valid when a woman's cannot?
• Primary Sources: Bava Batra 48b; Kiddushin 9b; Mishneh Torah, Marriage 4:1.

Text Snapshot

"אין האשה מתקדשת אלא לרצונה... כשהאיש אנוס לקדש, הרי זו מקודשת" (Mishneh Torah, Marriage 4:1). Leshon nuance: Rambam transitions from the woman’s active consent to the man’s passive capacity. The Dikduk here—contrasting einah mekudeshet (passive negation) with harei zo mekudeshet (declarative validity)—hinges on the gezerah of the Sages.

Readings

• Magid Mishneh: Argues that the man's Kiddushin are valid because he possesses the power to divorce at will (gamar v'kanei). Since the bond is unilaterally dissolvable by him, the "forced" nature of the initiation is mitigated by his persistent legal agency.
• Nachal Eitan: Offers a sharper chiddush: The symmetry of Kiddushin and Gerushin implies that just as a woman can be divorced against her will, the man's capacity to effect marriage is not contingent on his internal "will" in the same way the woman's is. He essentially links the validity of the man's act to the gezerah shavah of "her status" (havayah) and "her exit" (yetzi'ah).

Friction

• Kushya: If the man is "forced," he lacks da'at (legal intent). How can a transaction requiring da'at be binding?
• Terutz: As the Tzaphnat Paneach suggests, in the context of Kiddushin, the man’s act is viewed as a mitzvah. The law presumes an underlying satisfaction with the result, even if the process was coerced, because the outcome aligns with his normative legal capacity to marry.

Intertext

• Kiddushin 8b: Discusses the necessity of the woman’s agency.
• Shulchan Aruch, Even HaEzer 42:1: Codifies the Rambam’s ruling, distinguishing between the man’s Kiddushin and the woman’s absolute requirement for ratzon.

Psak/Practice

The halacha maintains a stark gender asymmetry: the woman’s consent is a sine qua non for the creation of the issur (prohibition), while the man’s capacity to create the bond is protected by his plenary power to dissolve it. Practically, this means "forced" marriages for men are b'di'avad valid, while for women, they are void ab initio—an essential safeguard in Jewish family law.

Takeaway

Consent in Kiddushin is not merely an emotional state but a gatekeeping function; the Sages removed the woman's power to be bound by force precisely because she lacks the unilateral power to exit the bond.