Shiur #06: Eidei Kiyum (Part 2)
Talmudic Methodology
Yeshivat Har Etzion
Shiur
#06: Eidei Kiyum (Part 2)
By Rav
Moshe Taragin
In the previous
shiur, we discussed the
function of eidei kiyum, attending witnesses required for marriages,
divorces and certain forms of kinyan. We saw the revolutionary position of the
Ketzot Ha-choshen: that the actual presence of these eidim may not be
required, but rather some degree of legal verifiability. In this shiur, we will explore the additional
consequences of this question.
The Gemara in
Kiddushin (43a) mentions that eidei kiyum do not have to be formally
designated: by merely witnessing the ceremony, they accomplish their halakhic
function. Based upon this liberal
definition, the Ritva claims that any witness who views the ceremony is
considered an attending eid.
Potentially, people who are invalid witnesses who view the events would
be incorporated into the 'eidim set;' once the eidim set is
infiltrated by disqualified witnesses, the entire group becomes invalid based
upon the principle of eidut she-batla miktzatah batla
kulah: if testimony is partially invalidated by the disqualification of one
or more of the witnesses, it becomes invalidated totally. This view of the Ritva serves as the
source for the custom to actually designate valid attending witnesses and
exclude others. This measure,
though not necessary to build a set of witnesses, prevents infiltration by
invalid ones.
This notion,
that attending witnesses join the eid set simply by viewing the event, is
discrepant with the standard conditions for joining the 'set' of witnesses. For example, the Gemara in Makkot (6)
claims that only by intending to witness the event as a formal eid or by
actually dispensing testimony in court do individuals infiltrate the eid
set and potentially subvert its validity if they themselves are invalid. Perhaps this inconsistency in the
conditions for joining an eid set reflects a structural inequality
between attending eidim and testifying eidim; perhaps eidei
kiyum are not required as potential testifying witnesses to provide future
evidence and verifiability; perhaps the Ritva argues with the Ketzot, views the
eidei kiyum as integral to the actual ceremony, and therefore
incorporates them as witnesses even if they do not meet the typical standards
for eidei ra'aya (testifying witnesses).
An additional
statement of the Ritva supports the idea that he disagrees with the view of the
Ketzot: the Ritva claims that the eidim must be visible to the
participants of the kiddushin.
If they are concealed from view, even though they witness the event and
can testify to its occurrence, the kiddushin is invalid. Presumably, this would accord with the
previously described position of the Ritva which views the witnesses as part of
the ceremony; as such, they must participate in a visible and unambiguous
manner. Were their presence
necessary solely to provide future verification, we might allow concealed
eidim, since they can indeed verify the event which they witnessed
covertly.
Yet another
issue may relate to the following question: how much of the event must the
eidim witness? If they see
the essential act, but do not actually witness the details, would they qualify
as legitimate eidei kiyum: for example, if they witness the ceremony but
blink during the actual delivery of the ring, would their presence be
sufficient? It appears that this
question is debated by the Rashba in Responsum #780 and the Mordekhai in
Kiddushin. The former demands full
exposure, while the latter allows certain details to be assumed: even if they
did not see the actual transfer of the ring, since they witness the overall
event, they may assume the delivery.
Perhaps this question as well is affected by the function of eidei
kiyum. Assuming the Ketzot's
interpretation, we would have little demand for comprehensive witnessing of
every minor detail. Eidim in
general are allowed to testify in court based upon assumptions which underlie
the event they witness. By
attending a chupa and recognizing the husband and wife, they can assume that
standard procedure was followed and can testify based upon these
assumptions. Once they have seen
enough to inform future testimony, they render the event verifiable and serve as
valid eidei kiyum. In fact,
in his Avnei Milu'im (31:4), the Ketzot agrees with the Mordekhai. If the Ritva is correct and we require
eidim as part of the ceremony, we may demand first-hand exposure to even
minor details of the ceremony- a position asserted by the Rashbah. Though compelling assumptions may
validate legal testimony, it is insufficient participation to qualify as
eidei kiyum.
A striking
position of the Ittur in his comments to Kiddushin (78) may further support the
Ketzot. The Ittur claims that
witnesses whose ineligibility is only rabbinical in degree are nonetheless
disqualified from serving as attending witnesses even at a de-oraita
level, as if the Written Torah had invalidated them. Thus, if professional gamblers (whose
exclusion is rabbinical) would serve as eidei kiyum at a wedding, the
ceremony would have no validity and would not require divorce. Ostensibly, this position seems
peculiar: since their de-oraita status is valid, they should at least
confer legitimacy at a de-oraita level. We have numerous situations of halakhic
ceremonies which fail due to rabbinical injunctions but are still regarded
seriously based upon their de-oraita viability. In all likelihood, the Ittur as well
agrees with the Ketzot that attending witnesses provide future
verifiability. If a person's
testimony will ultimately be rejected by a court even if the rejection will be
on rabbinical grounds he provides no verifiability and is therefore
disqualified even at a de-oraita level. Since, practically, his testimony is
useless, he cannot serve as an eid kiyum!
Finally, this
issue, which has been traced through the Ketzot and the Ritva, may be a dispute
in the Gemara itself among the Amoraim, as seen in the question of whether a
shali'ach may serve as an eid kiyum. This issue is debated by Rav and Rav
Shila in Kiddushin (43a), and it may very well revolve around the status of a
shali'ach. The Gemara's
language suggests as much when it explains that Rav Shila's opposition to the
dual role is due to the fact that the shali'ach has been rendered a party
to the ceremony and can no longer serve as an objective eid. However, if we recall the Ketzot's
definition of eid kiyum, we might wonder about this disqualification: as
the shali'ach has nothing to gain or lose from this event, his future
testimony should be acceptable and he should be valid as an eid
kiyum. Perhaps, part of Rav
Shila's position is based on his viewing the eidei kiyum as an essential
element of the ceremony, as the Ritva does. As such, the shali'ach who
performs the ACT of kiddushin cannot also witness the ACT of
kiddushin, as these are two distinct functions. On the other hand, Rav, who allows a
shali'ach to serve as an eid kiyum, views the role of eidei
kiyum in a fashion similar to the Ketzot, and since the unbiased and
unaffected shali'ach can deliver future objective testimony, there is no
reason he cannot serve as an eid kiyum.