Yichud Eidut for Kiddushin

Rav Tzvi Chaim (Stephen) Kaye and Baruch Baigel

Based on a shiur by Rav Mordechai Friedman (Winter 5762)

 

 

Sources for the next shiur:

 

Kiddushin 43a - "itmar rav…delo havei kiddushin"

Ritva s.v. "itmar rav"

Makot 5b - Mishna and Gemara until "she-harag et ha-nefesh" (end of 6a)

Rosh Makot § 1:11

Avnei Miluim § 42:6 s.v. u-lefi zeh, 7 s.v. amnam

Shulchan Arukh (with Rama), Even Ha-ezer § 42:3/4

 

I.

The Gemara (Kiddushin 43a) discusses a dispute between Rav and De-vei Rebbi Shila concerning the possibility of appointing a single person as both a shaliach (agent) and a witness to the kiddushin ceremony. Rav holds that a single person cannot fulfill both roles, whereas De-vei 'Rebbi Shila disagree. In discussing the logic behind the opinion of De-vei Rebbi Shila, the Gemara suggests that a shaliach cannot simultaneously serve as a witness because the meshaleach (the agent's dispatcher) never appointed him as a witness (by saying, 'havei li eid' – 'be a witness for me'). The Gemara then rejects this reason, claiming that if this were true, witnesses would require specific designation in all cases of kiddushin. The rishonim note that the Gemara here assumes that kiddushin is binding even without (specific) designation of witnesses, or yichud eidut.

 

A Gemara in Masekhet Sanhedrin (29a), however, appears to imply otherwise.  The Gemara there addresses a case where a lender claims money from an alleged borrower. In order for the borrower's admittance of the debt to be legally significant as evidence of the alleged lender's claim, witnesses must actually be assigned to observe the borrower's confession. This appointment raises the level of seriousness in the confession such that the borrower cannot claim that he was 'only joking' ('meshateh ani bekha') and never intended to issue a genuine confession. Rashi (s.v. hakha nami) explains that if witnesses were not appointed, the borrower might claim that he confessed only in response to the claimant's persistent demands for the money. The Ritva (s.v. itmar rav) brings a second possible claim the borrower could assert, that he confessed only to give the impression of poverty, that he was so poor he needed to borrow money. (Apparently, in the period of Chazal people always wanted to be thought of by others as poor). The specific designation of witnesses does not affect the quality of the eidim but merely validates the confession. Why should a loan confession require appointed eidim, whereas kiddushin does not? It would seem that the claim that he was 'only joking' is not (generally) accepted in a kiddushin ceremony. We assume that one does not joke and go out of his way to perform a potentially valid ceremony of kiddushin with the knowledge that observers become valid witnesses. Furthermore, the reason given by the Ritva regarding the case of a loan confession clearly does not apply to a situation of kiddushin.

 

II.

The Mishna in Makot (5b) teaches that when a kat eidim (group of witnesses) comes to testify, if one witness within the kat turns out to be invalid (e.g. he is related to another witness or participant in the trial), the entire group is disqualified. In the ensuing Gemara, Rava explains that only those who come to 'establish the matter,' meaning, who actually testify, become part of the kat, but not everyone who witnessed the event. This chiddush of Rava teaches us that when onlookers witness an event, they can exclude themselves from the kat simply by claiming that they only went to see the event but had no intention of becoming witnesses to testify. This ability to exclude oneself from the kat is crucial for any case where an onlooker (including the victim, who is always pasul by virtue of his inevitable bias) may be an eid pasul (invalid witness) or relative and thus would otherwise disqualify the entire testimony.

 

The Ritva, among others, raises a practical problem within kiddushin based on this principle established in Makot. Usually, family is present at the chupa. If no explicit designation of eidim is required for kiddushin, then everyone present is automatically included in the kat of witnesses. Accordingly, relatives' viewing of the proceedings should disqualify all testimony. Since kinyan kiddushin (the legal effectuation of kiddushin) requires the presence of two kosher eidim, this problem would threaten the validity of many marriages. [One could conceive of an interesting chumra – not to invite any family to one's wedding!]

 

Although the guests could claim that they have come merely to see the proceedings and not to act as witnesses (which would exclude them from the kat eidut – as explained above), the Ritva comments that such a mechanism cannot work in kiddushin. An essential difference exists between the eidut for normal monetary and criminal cases and the eidut at kiddushin. In monetary and criminal cases, the witnesses' role revolves around the testimony provided in court and not their presence at the incident under question. The critical moment that defines the kat is when the eidim come to court. It is thus easy for an eid to exclude himself from the kat by declaring before the critical moment – the courtroom testimony– that he is just coming to watch. In kiddushin, the entire function of the eidim is to witness the act of kiddushin as it happens. There is no need for them to testify subsequently to confirm the kiddushin; the viewing itself was the testimony that effectuates the change in legal status. The critical moment for kiddushin that defines the kat is the viewing of the act. Whoever sees the kinyan kiddushin is thus immediately included in the kat and cannot subsequently exclude themselves.

 

[This distinction parallels the fundamental "chiluk" (developed by the Brisker school of learning) between two different categories of testimony in halakha.  The first is eidut le-kiyum ha-davar, where, as in kiddushin, the kinyan can take effect only with the presence of two witnesses – even if there is no need to confirm that the kinyan took place. Eidut here is required not as a means of determining what has happened but rather as a formal part of kinyan. In the second group, eidut le-birur ha-davar, which includes criminal cases, the eidut is external to the act and comes merely to determine whether or not a given event indeed occurred.]

 

Other Rishonim are also troubled by this problem. The Rosh in Masekhet Makot (§ 1:11) suggests a resolution that effectively negates the entire question. He writes that the provision by which an invalid witness disqualifies the kat applies only in cases where the eidim are required to actually give testimony in court. Regarding kiddushin (and other cases of eidut le-kiyum ha-davar), however, no such halakha exists. Hence, eidim pesulim do not invalidate the eidut and the presence of relatives at weddings thus poses no problem.

 

The Ritva, who does not accept the distinction of the Rosh, resolves this difficulty by utilizing the mechanism of yichud eidut. By specifying two kosher eidim before the act of kiddushin, one can define the kat eidim and limit it to the appointed eidim to the exclusion of all others. The novelty of this approach is that the groom or mesader kiddushin (officiating rabbi) can exclude onlookers from the group of legal witnesses. Thus, even if they saw the kiddushin and intended to be eidim, they can have no effect on the designated witnesses.

 

At first glance, we have difficulty understanding the position of the Ritva. What gives the groom or mesader kiddushin the right and power to exclude others from being eidim? How can yichud eidim impose a limit on the membership of the kat eidut?

 

1) One could perhaps argue that in truth, the groom does not have the power to exclude other people from testifying.  He can, however, instruct others not to have intention to be eidim. Once he tells the crowd that only the designated eidim will be accepted as such, no one else present has any intention to serve in this capacity. However, this suggestion can explain only the position of the Ritva as it appears in Masekhet Kiddushin. However, in Makot and Gittin (18b), the Ritva makes it clear that even if eidim come merely to watch the ceremony and had no intention of becoming formal witnesses to the event, they acquire the status of eidim. Thus, according to the Ritva, eidut for kiddushin depends not on the intention of the guests, but rather on their mere presence at the ceremony. [One could suggest that if eidim had specific intention not to be eidim – or "negative kavana" – then they would not be included in the kat. This is comparable to the case where one performs a ma'aseh mitzva, or mitzva act, with specific intention not to fulfill the mitzva. Even according to the view that mitzvot einan tzerikhot kavana (one fulfills a mitzva even without specific intention), one cannot fulfill a mitzva against his will.]

 

2) An alternate explanation appears in the Rosh, who addresses a case where invalid eidim or family members were present along with the appointed eidim at the giving of a loan. The Rosh writes that the invalid witnesses or relatives do not have the power to undermine the lender's financial rights once he specifically designated witnesses to the exclusion of others. One could understand this comment of the Rosh in one of two ways. First, he might be suggesting a type of ba'alut (control) over the ma'aseh (the proceedings): since it is my kinyan, I have the right to determine who will serve as eidim! Alternatively, the Rosh here suggests that by appointing eidim, I have the right not to believe anyone else who claims to have become a witness against my instruction. The first possibility is difficult to entertain. Where do we find that the lender or the groom should have this sort of ba'alut over the transaction or betrothal? (If this is the correct understanding of the Rosh, it would seem that specifically the groom, who would enjoy this ba'alut, and not the mesader kiddushin, would have to appoint the eidim.) It is unusual to speak of ba'alut over a ma'aseh. Furthermore, even if this ba'alut does exist, why would it grant one the ability to prevent those who clearly witness the ma'aseh from becoming formal eidim, when the definition of eidut is simply viewing what has occurred? The second possibility (that the individual involved does not have to believe the eidim psulim) may work for monetary cases, where the Beit Din has the power to decide who owns what (and even if they are wrong, they could rectify the situation through the principle of hefeker beit din hefker). In eidut le-kiyum ha-davar, however, whether or not one believes the eidim is irrelevant; what matters is whether or not objectively they witnessed the ma'aseh. In certain situations, perhaps, one has the right to discount the testimony of eidim and need not concern himself with the possibility that they really did see the ma'aseh. This would not be true, however, in the context of kiddushin, where halakha shows concern for even a very small possibility that kiddushin took place. (Since with kiddushin the woman assumes the very serious status of an eishet ish, halakha generally presumes the betrothal to be effective - thus requiring a get should the woman wish to remarry - even when there is just a chance that a valid kiddushin has occurred.)

 

To understand the Ritva's position, let us examine his other comments on this issue. He writes that although yichud eidut is unnecessary (if no invalid eidim are present), nonetheless, when the bride (or groom) is unaware of the eidim's presence (eidim me-achorei ha-geder), the kiddushin does not take effect. Meaning, the groom does not need to designate the eidim, but he must be aware of their presence. The Ritva gives two reasons for this requirement. In one approach, he writes that although eidim are valid for normal testimony (to confirm the facts of the case) even if their presence was unknown to the parties involved, for kiddushin (and all eidut le-kiyum ha-davar), "it is not considered eidut for acts where the act itself (guf ha-davar) requires eidut [in order to create a change in legal status]." What does the Ritva mean? How do these words answer the basic question? Why must the couple be aware of the eidim's presence? Why isn't eidut me-achorei ha-geder effective as eidut le-kiyum ha-davar?

 

The Avnei Miluim (§ 42:7 s.v. amnam) understood this Ritva to mean that not only does kiddushin require eidim, but the couple must actually intend to perform the act of kiddushin in the presence of those specific eidim. [We could understand this requirement by viewing the function of the eidut as not merely to establish testimony, but also to effect gemirat da'at (full resolution) of the parties involved in the kinyan.]

 

If so, then perhaps yichud eidut works by the groom's intending that the two specified people and only those people function as eidim. Rather than actually disqualifying everyone present from kiddushin, the yichud eidut focuses the mind of the groom, qualifying only two people to be eidim (i.e. actively including only those two). However, this would suggest that in all cases of kiddushin, a certain level of intention of the groom regarding the witnesses is required. Perhaps we assume that without yichud eidim the groom intends to include everyone present. This would explain why, as the Ritva claims, when no eidim pesulim are present one need not appoint eidim.

 

The Rama (Even Ha-ezer § 42:3/4) rules like the Rivash, who accepted the Rosh's approach, that the provision of kat eidut, where a single invalid witness disqualifies the entire group, does not apply to kiddushin. The Rivash is then left with our Gemara that eidei kiddushin do not require designation. Thus, even if two were designated, other wedding guests could assume the status of eidim. If, after the marriage, one of the eidim is found to be pasul, another guest who saw the ma'aseh can be considered to have been the other eid even though he was not specifically appointed.

 

To summarize: The Gemara (43a) assumed that one need not appoint eidim for kiddushin. The Ritva raised the problem of guests (who are related to the bride of the groom or otherwise invalid as eidim) combining with the kosher eidim in a kat eidut (as suggested in Makot). He rejected the possibility that the eidim exclude themselves from the kat (as suggested in Makot with reference to criminal cases), since their eidut takes effect when the ma'aseh occurs, and not in court. The Rosh discarded the question, claiming that the concept of kat eidim applies only to courtroom testimony, not when witnesses are required as a formal component of a ritual (such as kiddushin). The Ritva, however, suggested the appointment of specified eidim to solve the problem. Possible suggestions to explain how yichud eidut works include: the use of the designation to affect the intention of the other witnesses; a type of ba'alut over the kinyan; and the right to discount eidim who weren't appointed. However, all these suggestions presented various difficulties. The Avnei Miluim suggested that the couple must have their eidim in mind, and they thus qualify only two people to be eidim. The Rivash seems to disagree with the Ritva and accept the Rosh. He held that even if yichud eidut was performed, it would be irrelevant. This allowed the Rama to rule that if one of the appointed witnesses is found to be pasul, a guest may take his place and thus validate the kiddushin.

 

On a practical level, the Shulchan Arukh follows the straightforward reading of our Gemara, that no yichud eidut is required. Apparently, the Rambam, Shulchan Arukh and Rama did not consider the presence of relatives to be a problem (see Pitchei Teshuva, Even Ha-ezer §42:8). Many poskim, however, including the Semak (ch. 183), the Radvaz (II ch. 707), the Shakh (Choshen Mishpat § 36:8), the Beit Meir (§42:2), the Arukh Ha-shulchan (42:31) and the Ketzot Ha-choshen (36:1), testify that the minhag is to designate eidim. Rav Friedman told that he once attended a wedding where a certain Gadol B'Yisrael forgot to designate the eidim. He immediately realized his oversight and promptly designated the eidim and there, under the chupa, redid the kiddushin! Many poskim, however, maintain that be-di'avad (ex post facto) the kiddushin is perfectly valid (see Otzar Ha-poskim 42; sk 27, 7).

 

Sources for the next shiur:

 
1.         Kiddushin 43b "tnan hatam … geirushin di-baal karcha bein hee bein aviha," Gittin 64b "naara hami-urasa … lav klum hee."
2.         Rashi Kiddushin s.v. naara, Rashi Gittin s.v. hee, Tosafot Kiddushin s.v. tnan.
3.         Kiddushin 44b "naara … bi-she-ein la av," Ramban Milchemet Hashem Gittin [30b in the pages of the Rif].
4.         Kiddushin 3b "bi-kesef … shevach ni-urim li-aviha," Tosafot haRosh s.v. aval "vi-af al gav …."
 
Questions
1.         What is the rationale for the majority position that a get can be given directly to a naara even though she is in the custody of her father?
2.         According to this position, can a get be delivered directly to a minor?
3.         What distinctions between gittin and kiddushin are offered by the gemara in order to explain the position of R. Yochanan?
4.         How can R. Yochanan's position be aligned with the gemara at the beginning of the first perek (3b)?