For private communication, write to eliezer(no space)e at aol

Monday, August 29, 2011

Shoftim, Devarim 19:15. Testimony that Requires Two Witnesses. עַל פִּי שְׁנֵי עֵדִים אוֹ עַל פִּי שְׁלֹשָׁה עֵדִים יָקוּם דָּבָר and an Unwelcome Suprise.

The day before the wedding, the Chassan entrusts the ring to his sister.  The wedding begins, the family gathers to begin the procession, the sister gives the ring to her dear brother, and all is well.

A few days later, at the Sheva Brachos on Shabbos, the Chassan's sister, bored by the speeches, is idly playing with her wedding ring.  As she distractedly glances at it, something strikes her as different, something is not right.  The unwelcome but inexorable realization comes upon her that the shiny new ring she is wearing is not hers.  She asks to see the Kallah's ring, and her stomach turns over- the Kallah is wearing her ring, and she is wearing the ring her brother gave her to watch.  Evidently, she had taken off her ring for some reason, and mistakenly put her brother's ring on and gave her own ring to her brother.  The ring that the Chassan used to effectuate Kiddushin did not belong to him.

I did not make this up.  This happened a few weeks ago.  This is not the kind of shailah where the Rov can say "I need to think about this, I'll call you tomorrow" and run home and call his own posek.  This is a question that needs an answer right now.  If the shaila came to you, what would you say?

The local posek resolved the issue by saying that in Arayos and family law, legal proof can arise from only two things: Evidence or testimony.

The evidence that the ring did belong to the Chassan is the fact that he was holding it at the chuppah, and nobody protested that it was not his.  Now, the Kallah has the ring, and it is presumptively hers.  This Chazaka is sufficient evidence of ownership.

Now, the sister challanges the Chazaka and the Muchzak and says that the ring is hers.  If the sister could specify some unusual quality in the ring the kallah was wearing that would be known only to her, that would be sufficient evidence- a Siman.  There was no such siman given here, it was just the sister's certainty based on unspecified visual or tactile cues, Tvias Ayin.  As for testimony, our passuk teaches that such cases require two male witnesses that are not related to the parties. עַל פִּי שְׁנֵי עֵדִים .... יָקוּם דָּבָר  Here, the testimony is that of one individual who is an immediate relative (rishon/rishon) and not a male.   This testimony is considered legally insufficient and does not overturn the status quo of a presumptively valid marriage.

This psak may be sound (debatable: because it assumes that Chezkas Nesu'ah prevents you from a pure dinei mamonos analysis, where you would have to deal with the ne'emanus of a shalish, and either hoda'as ba'al din or bari v'shema) but it is very unsatisfying.  All the parties involved know that the sister is 100% right, and the kiddushin was 100% invalid.  Legally defensible is not the same as actually married.  Of course, the Chassan can get a few friends together and do it over without brachos, but realizing that they had not really been married for the past few days must have been terrible........if not for the psak halacha that the Hagahos Mordechai's brings from Rashi.

This is not the first time in history such a thing happened; more likely that it has happened tens of  thousands of times, and not just because of incompetent Mesadrei Kiddushin.  I've seen similar things even with experienced rabbanim.   So:  The Chassan certainly has to redo the Kiddushin.  But what about the Chuppah, and what about the Sheva Brachos?   Do you have to do the Chuppa over?  In this case, since it happened on Shabbos, there's an additional problem- it is assur to do kiddushin on Shabbos.  So whatever you do will have to wait until Motzei Shabbos.  Can you finish the Sheva Brachos you are in middle of?  Do you start the whole week of Sheva Brachos over? 

The Hagahos Mordechai in the end of Kiddushin, says that just such a Shailah was brought to Rashi, and Rashi paskened that the Chassan must do the Kiddushin, but there is no need to repeat either the Birkos Eirusin or the Birkos Ni'suin.  The Rama (EH 61) quotes this, but only mentions that Birkos Nisuin don't have to be repeated.  But a Teshuva in the Binyan Tzion says that despite the Rama's implicit disagreement with the Hagahos Mordechai regarding Birkos Eirusin, he holds lehalacha that when the Chassan does the Kiddushin, no brachos should be made: No need for a minyan, no need for Birkos Eirusin, no Birkos Nisuin, and no Sheva Brachos.

This requires some thought.  Why shouldn't he have to do the brachos now?  If the Kiddushin was invalid, then the Bracha they made at that time was a Bracha Le'vatala, and they are just getting married now, and their Kiddushin should require all the Brachos!

Synopsis of answers:
1. When you do Chuppah and then Kiddushin, the Chuppah is koneh kinyan gamur lemafrei'a.
2. Chuppah is a kinyan nimsheches, it's not  כלתה קנינו, it creates a state that stands forever, and so when you do kiddushin later, it is like doing kiddushin at the time of the chuppah, and while it's not lemafrei'a, the eventual kiddushin does begin at that time, so it justifies the Birkos Eirusin you made when you did the erroneous Kiddushin.
3. Yes, the Kiddushin was in error, but the Birkos Eirusin were kosher anyway, because they were made during an public celebration of a wedding, even though the actual wedding took place a week later.

1.  I would say that if you hold that Chuppah can be before Kiddushin, then when you do the kiddushin, the chuppah makes nisuin retroactively.  In other words, Chuppa makes nisu'in, but only when there is a kiddushin.  Instead of thinking of the two as incremental, one might say that kiddushin is a tnai in chuppah.  So it doesn't matter if the kiyum hatnai is before or after the chuppah; if you make a chuppah and later the kiddushin, the chalos nisuin is at the time of the chuppah.  If you never make the kiddushin, the chuppah does nothing at all.  So although here he couldn't do the Kiddushin on Shabbos, because it's assur to make kiddushin on Shabbos, he could continue with the Sheva Brachos on the smach that he's going to be mekadeish her after Shabbos.  In a case where the Chuppa precedes the Kiddushin, and the Chuppa is le'mafrei'ah, one does not make Birkas Eirusin when he does the Kiddushin because the Kiddushin does not begin the relationship  Birkos Eirusin were instituted only when they begin the marriage, not when they are done to satisfy a tnai in the Chuppah, because then you are not making a kinyan that's chal now, you are ensuring that the kinyan that was done a while ago was chal. 

I admit that my pshat sounds like it's off the tracks, or, as we say in Yeshivish, שלא בדרא דאונא.   For one thing, it's inconsistent with the Ramban brought by the Mishna Le'melech in 10 Ishus 2, which is the source for saying that Chuppah can be before Kiddushin. (Ramban: the Gemara proves that Techilas Biyah is koneh from the fact that a Kohen Gadol can be mekadesh with Biyah.  The Ramban asks, but she still needs to be a besula when the nisuin is chall, so what good is it that she was a besula at the chalos kiddushin?  He answers that it's in a case where the Chuppa was before, so the two are simultaneous.  According to me, even if sof biyah was koneh there wouldn't be a problem because it's lemafrei'a.)

But הסכת ושמע, listen to the words of the Chelkas Mechokek in EH 55:9.
נראה פשוט כל זמן שלא נתקדשה אין חופה קונה קודם הקידושין
 רק כשנתקדשה
 נקראת למפרע 

I know that most of you won't be mekabel this pshat in the Hagahos Mordechai, even with the support of the Chelkas Mechokeik, so here are some alternatives. 

2.   The Rogotchover in Tzafnas Pa'anei'ach Hilchos Trumos 20 and Reb Elchanan in Kovetz Shiurim Kiddushin 61 propose that kiddushin is an endless composite of sequential renewals of the marriage.  In yeshivish, that means that there is a new chalos every second.  If so, we can improve the Avnei Nezer (EH II 387, who says the Mishna LeMelech is only right where she's still in the Chupa, as great unknown guessed) by saying that Chuppah is taking her into your protection, like holding her in your hand, and she is in your reshus forever after even when they walk out of the chuppah.  Or if you want, you can simply say that Chupa is not  כלתה קנינו.  If so, once there was a chuppah, and later you make kiddushin, the kiddushin and the chuppah are chall together, because she's still, in a sense, in the chuppah.  So the brachos you made on the kiddushin and the chuppah were not levatala, because that's when you began the mitzva of kiddushin and chuppah, which came to finality when you made the kiddushin later.

3.  The Chazon Ish (63:23) says a massive chiddush, as follows:
וכן בקידושי טעות הברכה קיימת כיון שברכו בשעה שראויין לברך ואף שהיה בטעות ראוי לאדם לברך את ד' בכל היום אלא שאינו רשאי להרבות בזה וכעין שאמרו סיימתינהו לכולהו שבחא ולכן צריך להתנהג בגדרים מיוחדים ולזה הגדירום חז״ל אימתי לברך וקבעו השעות שהאדם יותר מוכן בהכרת בוראו וחסדיו וכל שעשה ברשות חשיב ברכה ויוצא בה שכבר הגיעו שעה המוכנת אף שהיתה בטעות

(ומקרי חד אישות מהכניסה שהיתה בטעות עד עכשו שחדש הקדושין)

I have to admit, though, that it's not really accurate for me to characterize this as a massive chidush, because maybe I would realize it's not such a chiddush if I understood it.  What does he want with the last parenthesized sentence?  Is this a new pshat?  And in the main part of the paragraph, what does it mean that it's the right time for a bracha, even if it turned out that there was no kiddushin?  What made it the right time?  The mistaken idea that they were making a kiddushin?  The flowers?  Does he mean that we have more leeway here because the brachos are Birkas Shevach and not Birkos Hamitzva?  Or does he mean that even if there are some birkos hamtizva here, it's ok, because it looked like a chasuna even if it turned out to not be a chasuna?  I just don't know.   But the part where he says that it's one Ishus from the Knisa despite the error, מקרי חד אישות מהכניסה שהיתה בטעות עד עכשו, which sound very much like my second pshat- that part I like.

An additional benefit of the Chazon Ish is that in our case, you would just go ahead with the Sheva Brachos.  Although you cannot redo the Kiddushin on Shabbos (it is similar to an act of kinyan), you can continue the brachos because כל שעשה ברשות חשיב ברכה ויוצא בה שכבר הגיעו שעה המוכנת אף שהיתה בטעות would continue to apply to this extension of the previous brachos.

One thing I do know.  BE'H when we have siyata dishmaya for my youngest son to get engaged, I'm going to tell him to make a mark inside the ring that he buys so that when he gives it to the Kallah, he'll know for sure it's the one that he bought.


Michael said...

My immediate reaction to this post was that shotgun weddings are apparently legitimate al pi halacha.

But even without the lomdus, wouldn't we at least consider it to be kiddushin through bi'ah, which, while less than ideal, is certainly valid, especially since the intent was there. So they could have just done chuppah again. Or is the lack of eidim a problem in that respect?

PellehDin said...

Michael: talyu'hu v'kidaish is an interesting sugya

As far as chuppa pre-kiddushin, that's what happens according to the shittot that the badeken is chuppah.

The concept of "Evidence or testimony" is a bit problematic here, since a) at best, it's bori veshema and b) at worst, it's hodo'as ba'al din. The chasan's claim under the chuppah that the ring was his was b'ta'us.

Would there be a difference if it turned out that metal in the ring was aluminum rather than gold?

Of course, there being a chezkas nesu'ah which was established prior to the knowledge of the sofek ba'alus [of the ring], a get would be necessary if it every came up R"L. But l'chatchila, I've participated in quiet redos myself as an eid.

Unless the couple prefers to take advantage of mayim g'nuvim...

b said...

You reminded me- the first time I was an eid kidushin was when I was an eid yichud and the mesader came running ever, and banged on the door, and said "Come out of there, you are not married!" And we redid the kiddushin, again without brachos or minyan. That was a case of a posul eid, which gets into nimtza echad etc, and the Noda BiYehuda that nimtza echad only makes the remaining guy like an eid echad, and the Rama says we're chosheish for the shitta that mekadeish b'eid echad is mekiudeshes if the parties agree, and so forth.

Anyway, this is definitely a post that's going to evolve.

grunk said...

Reb Meir Simcha also held with the "continuous chalos kiddushin" shitta. It is told that the Rogotchover would great him with a continuous "mazal tov, mazal tov" for each of the new kiddushins.

PellehDin said...

Try the Sha'ar Hamelech, perek 10 [chupas chasanim], and especially the ta'am hamelech there, s'if katan 14, where there seems to be a very strong opinion that chuppah is purely a d'rabanan.