Eidei kiyum bi-gittin vi-kiddushin
The gemara [kiddushin 65b] explores
what the source is for the need for two witnesses with respect to gittin and
kiddushin. The gemara presents a gzeira shava – it says the word "davar"
in the context of monetary matters and it says "davar" with respect to
gittin and kiddushin. Just as the pasuk is explicit that money requires two
witnesses so too we learn that gittin and kiddushin require two witnesses.
[This is
the source for the world famous principle "ain davar she-biervah pachos mishnayim"].
Here we arrive at the
famous-famous-famous kashya of the Ktzos Hachoshen. He wonders about the
gemara's gzeira shava. Money matters require "eidei beirur". Even
without the witnesses we say that the transaction occurred and the witnesses job is
just verify it. This is fundamentally different than gittin [and kiddushin]
which require "eidei kiyum". If a man gives a woman a get and there
are no witnesses he did not divorce her! So how can we derive the necessity of
eidei kiyum with respect to gittin when the source is money that only require "eidei
beirur".
The Ktzos answers that really money
matters also require "eidei kiyum" as it says "al pi shnayim
eideem yakum davar". But since the Torah believed a person who admits
obligation [from the pasuk "ki hu zeh" from where we derive the
chiyuv shvua of a modeh bi-miktzas. A modeh bi-miktzas is believed on what he admits] as we know the rule "hodaas baal din ki-meah eidem
dami" the presence of the baal din suffices as if there were witnesses.
Therefore the transaction is effective as if eidem witnessed it. This is in
contrast to a davar she-biervah where the admission of the baal din is not
enough. There is never a "yakum davar" unless there is some way to
verify the event. Thus, if it is money we can verify through the baal din [who
admits obligation] whereas davar she-biervah requires witnesses because davar
she-biervah doesn't allow for "hodaas baal din".
With this understanding he explained
the give and take of the gemara [kiddushin 65b]. Rav Ashi said to Rav Kahana
"What are you thinking that you learn davar-davar from money? Can we say
that just like with money hodaas baal din is ki-meah eidem so too here [davar
she-biervah] hodaas baal din is ki-meah eidem"? Meaning that just like
hodaas baal din is effective with money
and we don't need other witnesses at all, we should also say that it effective
with davar she-biervah [and we know that this is not so].
The gemara answers that since davar
she-biervah is "chayav li-acharini" [Rashi – her relatives are
forbidden to him and he to hers. Ra"ch - She is forbidden to the world
with her kiddushin] hodaas baal din doesn't work [hodaas baal din is only
effective if it is to nobodies detriment] and therefore we are compelled to
perform the act in the presence of witnesses who function as eidei kiyum.
This Ktzos served as a source of
discomfort for many acharonim: Rav Shimon Shkop [Shaarey Yosher 7/1] asked that
according to the Ktzos how is it possible to acquire a lost or ownerless
object. There is no baal din who is mischayiv and can verify the acquisition.
According to the Ktzos the baal din serves as the eid kiyum and here we have
none.
The Kintzker Rov, Rav Yoav Yehoshua
Weingarten [Chelkas Yoav Even Ha-ezer 6] asked from the case of someone who
sells to his friend through a shaliach where the baal din is not present to
verify the acquisition and nevertheless it is valid. Where is the eid kiyum or mischayav? There is none and yet it is still a valid acquisition. This question was already
alluded to by the Ktzos himself who answers with a HUGE chiddush that hodaas
baal din applies to a shaliach as well. This - one can argue with… [m'ken
dingen].
This question [about the difference
between the function of the two witnesses in monetary and ervah cases] does not
originate in the Ktzos but we already find it in the Pnei Yehoshua. He further
asks that the pasuk quoted by the gemara ["ki matza bah ervas davar"] is
talking about a woman who was unfaithful to her husband when in fact she is
forbidden to her husband even without eidem if she knows that she was
unfaithful, so how do we know that two eidei kiyum are needed with respect to
gittin and kiddushin which is a completely different category than eidei mammon
and eidei znus.
The P"Y answers that the limmud
of "davar- davar" is dealing in the realm of proofs [beirur]. We derive that we need two
witnesses to prove that an event occurred and when Rav Kahana added that if a
man marries a woman in the presence of one lone witness they are not considered
married this is his own personal opinion which is not derived from the gzeira
shava [but according to the gzeira shava they should be married since no eidei
kiyum are needed]. His logic is that since without witnesses the woman is not
forbidden to the world as there is no proof of marriage, it makes sense that
there is no kiddushin at all since the essence of kiddushin is that he sets her
aside for himself and forbids her on the whole world. Thus, in an instance
where she can't be forbidden to the world [in the absence of witnesses] it
makes sense that she is not considered married at all unlike money matters
where the essence of the transaction is NOT the prohibition that falls upon
others, we may say that the acquisition is valid even in the absence of
witnesses. He read his explanation into the words of the gemara. When the
gemara says "hasam lo ka-chayav li-achrini – hacha ka-chayav
li-acharini" – the gemara means that kiddushin IMPACTS OTHERS [not as we –
and the rishonim on the sugya - would otherwise translate, that it is to the
DETRIMENT of others] and therefore eidei beirur do not suffice unlike money
where the essence of the transaction does NOT impact others even eidei beirur
are enough.
This explanation of the P"Y is borne out
by a careful reading of the Rambam [Geirushin 1, 13] – see there.
AHHHHHH – The Ohr Sameach. The
Rov - not the Yeshiva. Ishus 9/16. He
offers a novel svara: If a person marries a woman without witnesses the kiddushin
is meaningless because they suspect that maybe tomorrow the both parties will
deny the whole thing so there is no "gmirus daas" [strong decisive
resolve – for lack of better definition…]
to get married on either side. When it comes to money matters one side
will always be gaining so there is no concern that both parties will deny the
whole thing [and even if it does happen we are not concerned because if they
both deny it things will go back to the way they were before the
transaction. No big deal. But with respect to kiddushin if they are really
married we can't allow things to go back to the way they were before the maaseh
kiddushin]. But there is such a concern on the case of kiddushin and thus in
the absence of gmirus daas there is no kiddushin.
He even read his explanation into the
words of the gemara: "hacha chayav li-achrini" – here [in the case of
kiddushin] there is a possibility that both sides will feel that it is
detrimental for them to get married [and they will deny it and therefore therefore
there is no gmirus daas].
This seems to be a bit of a stretch. One can say a similar
and possibly a more cogent explanation.
When someone performs an act that
cannot be verified by the baal din [such as kiddushin] there is no gmirus daas.
This is in contrast to money matters where the person trusts the baal din to
own up to his obligation [since he performs the transaction without witnesses].
To summarize the three approaches:
1] The Ktzos: Even monetary
transactions require eidei kiyum and this is accomplished by the baal din whose
admission is equal to a hundred witnesses unlike kiddushin where there is no
concept of hodaas baal din. There we require bona fide eidei kiyum.
2] The Pnei Yehoshua: According to
the gzeira shava even kiddushin is going to require only eidei beirur, but
since the essence of kiddushin is to forbid the woman to the whole world, if
there are no eidim [and no proof to forbid her] then it would make sense that
the whole thing is null and void.
3] Based on the Ohr Sameach: Without
eidim there is no gmirus daas and therefore the kiddushin is voided.
