Vayeishev, Breishis 38:1-end. Yehuda and Tamar and Yibum. (Edited for Intelligiblilty)

Reb Yakov, in his Emes LeYakov, has a a very interesting interpretive description of how Yibum-Levirate Marriage- was done before Matan Torah. Especially interesting is his addendum in the back of the sefer. There, he explains that in the Pre-Matan-Torah Yibum, (as the Ramban says,) the father of the man who died was the first choice to be me’yabeim (which is absolutely forbidden in our law of Yibum), and the son he fathered from his son’s widow took the name (which is totally unnecessary in our law of Yibum) and status of his late son (also no longer relevant). Reb Yakov says that this Pre-Matan-Torah perspective is reflected in the words of our Matan-Torah Parsha of Yibum, even though it no longer has any halachic relevance. As Rava in Yevamos 24a says, that the pasuk of “ve’haya habchor asher etc” is learned completely not kipshuto—unique in all the Torah, we totally disregard the literal meaning of the pesukim in the parsha of Yibum. Reb Yakov says that this is because the pasuk, the Torah she'biksav, is written kipshuto of the halacha before Matan Torah, reflective of the Historic Pre-Matan-Torah Yibum, but shelo kipshuto, in reliance on Torah she'Baal Peh, for the Halachic Post-Matan-Torah Yibum with which we are familiar.

R’ Yakov was a very brave man. He must have realized how dangerous it is to suggest that the behavior of the Avos imperfectly foreshadowed the Torah, or that the Torah Law of Har Sinai was a modification of what the Avos did, as if there was an evolutionary process of discovery involved, an incremental socio-spiritual evolution leading to revelation, or that the Torah She'Biksav reflects a no longer pertinent halachic position. The orthodox view is that the Avos did voluntarily everything as was later revealed and commanded on Har Sinai, (with some little exceptions that need to be explained away, such as Yakov marrying Rachel and Leah, or the Prashas Derachim's derech in the machlokes Yosef and the Achim). I bet that some day someone is going to asser R’ Yaakov’s sefarim because of this me’halach.

But now that Reb Yakov has taken that risk, I would like to suggest another application of this concept. We all know that kiddushin, the formal act which creates a state of marriage, can be done in three ways, as the first Mishnah in Kiddushin states. The most common method is by giving the woman a ring, or any item of value. This is derived from a gzeirah shava from Avraham Avinu’s purchase of a piece of land: just as one can execute a transfer of ownership of land by formally handing an object of intrinsic value to an agreeable seller, one creates a state of marriage by formally handing an object of intrinsic value to a woman. For as long as I can remember, I have had to deal with people who complain that the language of the Torah, the laws of Kiddushin, and the means of transacting Kiddushin, are reminiscent of the purchase of chattel. Many people have taken this misapprehension and built upon it a view that Chazal did, indeed, view a wife as the property of her husband. This is incorrect. It is incorrect and wrong-headed and dumb.

I say 'dumb' in the sense of willfully insensate. Despite the language of Shelo asani Isha, despite the pe'tur of zman grama, and despite the fact that divorce is by Torah law under the exclusive purview of the husband, anyone impartially and thoroughly reading the whole of Rabbinic literature will know that this is nonsense. If one finds the endless stories in Tanach and in the Gemara insufficient to demonstrate the domestic parity of husband and wife, the reaction is most likely symptomatic of a need to rationalize one’s disrespect for Chazal by demeaning them and viewing them as as primitives. But, in any case, here are some examples.

• Gittin 39b. If the Gemara isn’t clear enough, see Rashi there DH "Ve’kadaykis Minah.” This Gemara, and Rashi, state unequivocally that a husband has no (zero, nill) monetary ownership in his wife. All the rules that a woman’s income go to her husband are for her benefit, in that they come with equivalent and counter-balancing obligations on the part of the husband. Furthermore, any woman that wants to remain independent during marriage has the unfettered ability to negotiate that right prior to the marriage. 
• The Avnei Milu'im (44:4)  makes this point as well, that the reason the kiddushin of a woman who is married is meaningless is because she's chayvei krisus to the second person, not because she's already the property of the first person..  
• If the husband does not make it clear to his wife before marriage that he retains the right to plural marriage, he does not have that right. 
• According to most poskim, a woman may unilaterally declare her financial independence during the marriage even absent prenuptial agreement. 
• Furthermore, the Torah obligations of spouses weigh heavily on the husband and barely on the wife at all. The Torah obligation of a husband is to provide “she’eir, kesus, and ona,” meaning room, board, clothing, and marital relations. A wife’s obligation is to live in the city her husband chooses, and to participate in marital relations.  (Reb  Moshe makes this point in the Igros and Dibros repeatedly.)

Having said all this, why does it still look like you’re buying something? A man gives a woman an item of value and says "Harei aht mekudeshes li." She gives nothing. Orthodox Jews do not do double ring ceremonies, at least not under the Chupa. We learn this from "Ki Yikach Ish Isah," when a man will "take," or, one may translate with equal validity, "purchase", a woman, just as a man "takes" or "purchases" a parcel of land. So why is there such a disconnect between the formality of the chalos kiddushin and the halachic and social reality of kiddushin?

Perhaps we can explain this with Reb Yaakov’s approach. Perhaps before Matan Torah, wives were, indeed, purchased. Prior to Matan Torah, a wife was legally viewed as her husband’s property, and kiddushin was a purchase no different than a land purchase. BUT Matan Torah redefined marriage. The essence of marriage became completely different. Even so, the form of executing a state of marriage was retained. Despite the very different concept of what marriage means, and the essential difference between the significance of pre-matan torah and post-matan torah marriage, the method of bringing about a state of kiddushin remains the same.

Now, if I read this somewhere, I would suspect the author of being shelo be'dara de'una. But the fact is that this is no more radical than what Reb Yakov says about Yibum. In fact, if you think about it for a minute, you might want to consider whether the two ideas are associated; it was with the changed definition of Marriage, (whether one belongs to the other or that it is a mutual benefit relationship of equals, whether the physical superiority of the man is a determinant, or the spiritual equality is the more relevant,) that the definition of Yibum changed as well. (As the Comment from "Brisker" points out, this is also indicated in the Rambam's description of the different character of informal pre-MT marriage and formal Matan Torah marriage.) The change in Yibum was concomitant with the change in Marriage. This is the "requires some thought" part of this week's vort.

(Full disclosure:  Although I brought the Avnei Miluim 44:4 above to support my point that a woman is not acquired by her husband, many achronim disagree with the Avnei Miluim, such as the Dvar Avraham (3:10), Reb Elchonon (Kovetz He'aros 3), and the Chazon Ish (EH 148 but I don't remember where there.).