Eidut Le-Kiyum Ha-Davar
Normally, witnesses function in halakha only as providers of evidence. Whatever they testify about occurred irrespective of their presence. Their testimony is needed only as proof of what happened. With respect to kiddushin, however, witnesses function in a different capacity. Their presence during the marriage ceremony is required in order to establish the kiddushin itself. A marriage performed without proper witnesses is halakhically invalid, even if the parties involved admit that the ma'aseh (act of) kiddushin occurred. This is known as eidut le-kiyum ha-davar - endorsing witnesses - and it is a unique requirement unique to acts which alter marital status, such as gittin (divorce) and kiddushin. (Defining the exact parameters of this category is a complicated issue which will not be discussed in this shiur.) We will attempt to analyze this halakha, concentrating specifically on the role the witnesses play within the kiddushin process. We will begin with a number of borderline cases in order to test the limits of eidut le-kiyum ha-davar. We will attempt to show that the disagreement found in the Rishonim regarding these cases, reflects variant approaches regarding the role of eidut le-kiyum ha-davar.
A. Eidei Chatima
A shtar kinyan is a deed used to effect a transaction, whose very transfer from the seller to the buyer establishes the change of ownership. According to R. Meir, in order to validate a shtar kinyan all that is needed is that the witnesses sign the deed (i.e. eidei chatima). However, there is no requirement that they be present to witness the actual kinyan - the transfer of the shtar to the buyer (i.e. eidei mesira). Apparently this opinion claims, that the kinyan is established when the seller furnishes the buyer with indisputable proof that the land is now his. The signed document now in the hands of the buyer is considered proof for this purpose. (See shiur # 15)
When applying these principles of kinyan shtar to gittin or kiddushin, we must deal with the additional requirement of eidut le-kiyum ha-davar. According to R. Meir, the witnesses merely sign the get or shtar kiddushin, but need not be present during the transfer of the shtar. It would appear that we lack eidut le-kiyum ha-davar - there were no witnesses present during the marriage ceremony in order to endorse the kiddushin! This indeed is the opinion of R. Tam (Tosafot Gittin 4a s.v. De-kayma), who claims that in the context of gittin and kiddushin, both eidei chatima and eidei mesira are necessary - eidei chatima to create a valid shtar, and eidei mesira to fulfill the requirement of eidut le-kiyum ha-davar.
Most Rishonim, however, argue that eidei chatima alone fulfill the requirement of eidut le-kiyum ha-davar, even though the witnesses weren't actually present during the ma'aseh kiddushin or geirushin. In fact many Rishonim rule that even according to R. Eliezer who argues with R. Meir (and generally does require eidei mesira), eidei chatima are nevertheless sufficient, even for gittin! (See Rambam Hilkhot Geirushin 1:16). We must assume that these Rishonim maintain that somehow eidei chatima fulfill the requirement of eidut le-kiyum ha-davar as well, even though they were not physically present during the act of kiddushin or geirushin.
B. Ktav Yado
A parallel difference of opinion appears in a more extreme case, where, instead of eidei chatima, nobody signed the shtar kiddushin, however the shtar was handwritten by the chatan himself. This is known as ktav yado - personal handwriting. Whether or not ktav yado can be considered a shtar is not important for our issue. Even assuming that it is a shtar, its efficacy as a shtar kiddushin depends on whether it fulfills the requirement of eidut le-kiyum ha-davar. The Ritva brings conflicting opinions regarding this matter. First he brings the opinion of the Rashba, who invalidates ktav yado because, among other reasons, kiddushin requires eidut le-kiyum ha-davar. Then he quotes the Ramban who validates ktav yado since the personal testimony of the chatan is considered as that of a hundred witnesses, and consequently fulfills the requirement of eidut le-kiyum ha-davar.
C. Hidden Witnesses
The Rishonim also debated a case where the chatan hid witnesses, and than proceeded to marry the woman. Some Rishonim claim that such a kiddushin is valid, since witnesses were present. (See Tosafot Ri Ha-zaken 65b.) Many Rishonim invalidate the kiddushin. Some offer technical reasons; e.g. since the woman was not aware that eidim were present, we assume that she wasn't serious. The Ritva (43a s.v. Itmar), however, argues that hidden eidim are not considered eidim where we require witnesses for the act itself - eidut le-kiyum ha-davar. Hidden witnesses are only acceptable when the eidim are needed purely as evidence.
D. Karov U-Pasul - Relatives and Invalid Witnesses
If numerous witnesses come to testify, and one turned out to be invalid, he invalidates the entire group. Where a number of people saw an event, and one is invalid, the gemara (Makot 6a) qualifies the halakha. If the invalid witness intended to testify, then he invalidates the entire group. However, if he was merely an impartial observer, he does not invalidate the remaining witnesses. We would expect the same to be true regarding witnesses of kiddushin. Even though invalid eidim (close relatives of the bride or groom) are present, they have no intention to testify, and therefore do not invalidate the eidim. The Ritva (43a s.v. Itmar), however, argues that this leniency is limited to witnesses that function as providers of evidence. Since the testimony they later give is the crucial element, intention to testify is the critical factor. However, witnesses of kiddushin are not there to testify, but to validate the kiddushin itself. Therefore, the critical point is when they witness the kiddushin. Since both valid and invalid witnesses observed the kiddushin simultaneously, they, as a group, are all invalid. Therefore, the Ritva rules that the chatan must designate his eidim, in order to form an independent and valid group of witnesses.
We have mentioned four cases where the Rishonim argue regarding eidut le-kiyum ha-davar: 1. eidei chatima; 2. ktav yado; 3. hidden witnesses; 4. karov u-pasul. By analyzing these marginal cases, we will begin to focus upon two variant approaches in defining and understanding eidut le-kiyum ha-davar. For instance, it is clear from the last two cases that the Ritva distinguishes eidut le-kiyum ha-davar from regular eidut whose purpose is solely verification. In order to appreciate the novelty of this opinion, let us return to the source from which eidut le-kiyum ha-davar is derived.
Davar Davar Mi-mammon
We derive the requirement of eidut le-kiyum ha-davar, from the two witnesses needed in a normal case of monetary litigation. This presents a logical problem. How can this be the source for eidut le-kiyum ha-davar, since in monetary litigation the eidim function only as evidence. The simplest approach is that from monetary litigation we only derive that the level of evidence necessary to prove marital status is parallel to the level needed in a monetary case - two witnesses. (See 66a ein davar she-be'erva pachot mi-shnayim). In this regard, kiddushin is comparable to monetary matters, and in both the eidim are functioning as evidence. In gittin and kiddushin, however, we have an additional requirement that in order to be valid, the act must be verifiable. This is stated clearly by the Rambam (Hilkhot Geirushin 1:13) "it is unreasonable that a woman will be categorized one day as an erva where relations with her warrant the death penalty, while the next day relations are permissible - in the absence of witnesses." Therefore, kiddushin that was not performed in the presence of two witnesses is invalid, since it is unverifiable. In short, the requirement of eidut le-kiyum ha-davar in kiddushin, merely means that the potential of having witnesses must exist. These witnesses, however, will still function as providers of evidence. Accordingly, we would expect the criteria of eidut le-kiyum ha-davar to be basically similar to that of regular eidut le-beirur (witnesses who provide evidence).
However, the Ritva, as mentioned above, distinguishes between the two. When eidim are hidden, although they provide potential verification, they are nevertheless invalid for eidut le-kiyum ha-davar. Similarly, where invalid eidim had no intention of testifying, the future testimony of the valid eidim would be accepted, thus fulfilling the requirement of verifiability. Nonetheless, the Ritva again invalidates the kiddushin. It seems clear that the Ritva has an alternate understanding of eidut le-kiyum ha-davar. The eidim, according to the Ritva, are not required because they provide potential evidence, but rather for the role they play by their very presence at the kiddushin. What however, is that role?
Perhaps, we can speculate that the presence of the eidim is necessary in order to create an atmosphere in which we have no doubt regarding the intent of the parties involved. In the absence of witnesses, although both parties agree that an act of kiddushin was performed, it is always possible to claim lack of seriousness (in part based on the ability to deny that the kiddushin took place). In areas where we require a clear and unequivocal expression of da'at (intent), the act must be performed in the presence of witnesses. (See Ketubot 101b "Itmar ...milta dishtara," Rambam Hilkhot Mekhira 11:15, ibid 5:9, Ra'avad ibid. Eretz Hatzvi siman 25) If we accept this explanation, although we have offered an alternative regarding the role of the eidim, the basic category has not necessarily changed. If, for instance, we doubt the intent of the parties because of the possibility of denial, once again it is reasonable to require only the potential of evidence to assure us of the intent. (There may nonetheless be practical differences between the first approach and the current one.)
Therefore, I would like to offer an alternate approach, which will more accurately reflect the sharp distinctions outlined by the Ritva between eidut le-kiyum ha-davar, and eidut le-birur (evidence). Although kiddushin is a private relationship between husband and wife, it also involves broader social significance. Therefore, it would be reasonable to require an expression of this social aspect as part of the ma'aseh kiddushin. A private transaction is insufficient. Kiddushin must include a public element as well. The presence of witnesses transforms the kiddushin from a private affair to an official public ceremony. Accordingly, the witnesses are required for their very presence, which is not necessarily related to their ability to testify. Based on the above, we can explain the rulings of the Ritva. If the witnesses are hidden by the man, they are certainly capable of testifying, thereby fulfilling the requirement of verifiability. However, if the very presence of the witnesses is required to insure intent, since in kiddushin the intent of the woman is necessary, the kiddushin would be invalid. Furthermore. if the presence of the eidim serves to transform the kiddushin into an official public ceremony, clearly this cannot be achieved through hidden eidim. If the observers of a kiddushin include invalid witnesses, the valid witnesses can nevertheless testify, provided that the invalid witnesses did not intend on testifying. However, this is only regarding witnesses whose basic role is to provide evidence, since the very definition of their capacity as witnesses is limited to their testimony. If, on the other hand, the very presence of the eidim is needed, (either to insure intent or to transform the kiddushin into an official public ceremony), the group is invalidated since invalid eidim were also present, unless the chatan exclusively designated valid witnesses.
This analysis will also be useful in explaining whether or not eidei chatima and ktav yado can function as eidei kiyum. The Rambam who claims that eidei kiyum are necessary as potential verifiability (Hilkhot Geirushin 1:13) is consistent in ruling that eidei chatima are sufficient, since the get signed by the eidei chatima provides the required proof (ibid, 16). A similar claim can be made regarding ktav yado, since the personal handwriting of the husband perhaps provides sufficient evidence that he handed the get to his wife. Likewise, if the very presence of the eidim is needed to insure intent, it is possible to claim that the husband's intent is clear, since he handed a signed (or personally handwritten) document to his wife. However, if we require an official public ceremony, it is reasonable to require the physical presence of live eidim. All the above cases, are situations where the possibility of verification exists, however the witnesses are not physically present. Let us try to construct the opposite case, whereby eidim are present, but are incapable of testifying. One possible example involves eidim who are valid according to Torah law, however invalid by rabbinic standards (see Sanhedrin 24b). The Rashba (Responsa vol. 1 #1185), quotes the Rif who validates such kiddushin, since valid eidim according to Torah standards are present. However, if the eidim functioned merely as potential verification, it would be logical to challenge this ruling. After all, such eidim would not be accepted by beit din (rabbinic court) on a practical level, and therefore do not provide the required verifiability, despite their theoretical Torah status as valid eidim.
External or Intrinsic
Our basic question, the role of the eidim le-kiyum ha-davar, has ramifications regarding another issue as well. To what extent is the requirement of eidim le-kiyum ha-davar an integral part of the ma'aseh kiddushin, or merely an external condition. The Rama (Darkhei Moshe E.H. 150:2), rules that a get signed by eidei chatima but given without eidim present is invalid. Nevertheless, he continues, the woman can no longer marry a kohen. The Sha'agat Aryeh (Shut Ha-chadashot #3) argues that since no eidim were present it is as if no get were given at all and therefore she can even marry a kohen (upon the death of the husband). It is possible that their argument revolves around the relationship between the eidim and the ma'aseh. If the lack of eidut le-kiyum is basic to the ma'aseh geirushin then in this case where there is no ma'aseh geirushin at all it is reasonable that no prohibition to a kohen is created. However, if the ma'aseh geirushin is complete, but there is a side problem which prevents the get from taking effect, then it is certainly possible that a prohibition to a kohen is effected (see shiur #20).
If the eidim function as potential testimony, then it is reasonable that the eidim are a condition necessary for the kiddushin to take effect. However, they are merely an external requirement. Therefore, the absence of the eidim will have no negative effect on the ma'aseh per se. If, on the other hand, the very presence of the eidim transforms the kiddushin into an official public ceremony, then the eidim are functioning as an integral part of the ma'aseh kiddushin. Consequently, lack of eidim invalidates the ma'aseh kiddushin itself. (See Kometz Mincha mitzva 206).
We have developed two basic approaches regarding eidut le-kiyum ha-davar:
1. Gittin and kiddushin require verifiability in order to take effect.
2. In gittin and kiddushin, the actual presence of eidim is necessary;
a. in order to insure intent.
b. as part of the official ceremonial nature of gittin and kiddushin.
According to the first approach, any potential documentation may be accepted, while the second approach requires the actual presence of eidim during the ceremony. The first approach would view the witnesses as an external condition necessary for gittin and kiddushin, while the second approach would likely consider the eidim as an intrinsic element of the ma'aseh.
For further research:
1. How can the second approach possibly derive eidut le-kiyum ha-davar from monetary litigation?
2. See the Rambam and Ra'avad Hilkhot Ishut 7:23; 3:15; Rambam Hilkhot Geirushin 6:1-4. What is the argument between the Rambam and the Ra'avad based on? Is this related in some way to the variant approaches developed in this shiur?