Siman 32

It has already been explained in siman 26, section 12, that we derive kiddushin of a shetar from "and she shall go out and she shall become" – just as her going out is via a shetar, so too her becoming is via a shetar. Therefore, we require in kiddushin of a shetar most of the laws of a get, as will be explained. And how is kiddushin of a shetar performed? One writes for her on paper, even if it does not possess the value of a perutah, "Behold, you are sanctified to me," "Behold, you are betrothed to me," or "Behold, you are to me for a wife," and he hands it to her and says to her, "Behold, you are sanctified to me with this shetar according to the law of Moses and Israel." And if he did not say this, it is also kiddushin. In truth, it is not found in the poskim regarding kiddushin of a shetar that speech is required, and logic dictates this, for even in kiddushin of silver, when they are occupied with that matter, the speech is not an impediment, as I wrote in siman 27; and all the more so regarding a shetar, in which the language of kiddushin is written, that speech is not required. However, in the Gemara [48a] it implies that he must say to her, "Be sanctified to me with a shetar," and certainly ab initio he must say it to her, for such is the way of kiddushin. Nevertheless, it is not an impediment if she and the witnesses know that it is a shetar of kiddushin and he handed it to her – that is sufficient [it appears to me] [see Beit Shmuel, subsection 3]. And if she is a ketannah or a naarah and he sanctifies her via her father with a shetar, he writes "Your daughter is sanctified to me," and if he wrote "Behold, you are sanctified to me," it is also kiddushin [Chelkat Mechokek, subsection 5]. And in siman 37 it will be explained who receives the kiddushin, see there, and further detailed laws regarding this. And if she is an orphan and is sanctified via her mother or her brothers with rabbinic kiddushin, it appears that he must specifically write "Behold, you are sanctified to me" and hand it to her.

A shtar kiddushin is written by the husband, and even though she is the one who effects the acquisition of herself to him and in a bill of sale the seller writes "my field is sold to you," nevertheless, regarding kiddushin it is a law given to Moses at Sinai that the husband, the acquirer, writes "behold you are consecrated to me," as it is written: "When a man takes a wife" — implying that he must take her and not that she effects the acquisition of herself to him. And so too when he performs kiddushin for a minor or a maiden through the father as has been explained, even though it is written "I gave my daughter to this man" (Deuteronomy 22:16) which implies on the surface that he effects the acquisition of his daughter to him, nevertheless, the tradition came that the husband, the acquirer, must write the shtar: "your daughter is consecrated to me," and just as in a get the husband writes, so too in kiddushin. And even though in the Yerushalmi Kiddushin it is explained that even when the father of the maiden wrote a shtar "I, so-and-so, have consecrated my daughter to so-and-so" it is also valid, nevertheless, in the Gemara and in the poskim it implies explicitly that it is an essential requirement that specifically the husband writes it, and it also appears that the Yerushalmi only spoke regarding kiddushin through a father because it is written "I gave my daughter," see there — however, even in this we do not rule accordingly, and that which is written "I gave my daughter" means "I gave with my consent," for regarding a minor and a maiden specifically the consent of the father is required, but not regarding an adult woman.

One must give her the document in the presence of witnesses, just as with a get where delivery witnesses are required, for the primary ones are the delivery witnesses; as we hold like R. Eleazar who said delivery witnesses effect the severance in bills of divorce, and the same applies to kiddushin, for they have the same law, and there is no need for witnesses to sign on the document. However, regarding a get, it was explained in siman 133 that if witnesses signed on the get and he delivered it to her privately not in the presence of witnesses, there are those who say it is valid and those who say it is invalid, and likewise regarding kiddushin, and the reason will be explained there with the help of Heaven. And also there it was explained that ab initio one also requires signing witnesses, and as is our simple custom to have signing witnesses sign on the get and to deliver it in the presence of delivery witnesses, and likewise regarding kiddushin; nevertheless, ex post facto, if he did not have signing witnesses sign—it is valid according to everyone, both regarding bills of divorce and regarding kiddushin.

Since we hold that the witnesses of delivery effect the severance, therefore even if they wrote on something that can be forged, such as on earthenware and the like, it is also kosher, as in the case of gittin in siman 124. However, some say that this is specifically when there are no witnesses of signature, for then there is no concern; but if witnesses also signed on the document, it is not kosher on something that can be forged, for we fear lest they rely only on the witnesses of signature and it will be possible to forge, and there it will be explained with the help of Heaven. And it also must be written with ink or with anything whose mark is permanent, as in the case of gittin, and it was explained in siman 125. And it appears that all the caution required in the writing of a get—such as not to write it by way of a deaf-mute, an insane person, or a minor, and so too the other laws explained there—applies also to a document of kiddushin, since we learned the document of kiddushin from a get.

Our teacher, the Rema, wrote: If he wrote it in his own handwriting and there is no witness upon it—she is betrothed out of doubt. Thus far his words. And he means to say even if he delivered it to her between him and her, such that there are neither witnesses of signature nor witnesses of delivery. And the doubt is that even though regarding divorces and betrothals it is impossible to be without witnesses, as there is no matter of ervah less than two, nevertheless we hold that a get which he wrote in his own handwriting and there are no witnesses upon it and he also did not deliver it before witnesses—that from the Torah it is a get, and if she married the offspring is kosher. For since the Torah made it dependent upon his writing, as it is written, "and he shall write for her a scroll of severance" (Deuteronomy 24:1), therefore it is valid in his own handwriting from the Torah, and therefore some say that also regarding betrothal the law is so. And even though in this it is not similar to a get, for a get is written even without her consent and therefore the essence depends upon the writing of the husband, which is not the case regarding betrothal where her consent is also required, nevertheless since we learn the deed of betrothal from a get, the law is as in a get. And there are those who disagree on this, and even regarding a get—the get is disqualified by rabbinic decree and she may not marry with it as is written in siman 130, and all the more so regarding betrothal she requires other betrothal; however, in such betrothals she is betrothed out of doubt and requires a get.

It is necessary to clarify this law, for behold, it is certain that that which the Torah equated his handwriting to witnesses regarding a get refers to witnesses of signing, for the Torah said that his writing is as effective as the writing of witnesses, but this has no relevance to witnesses of delivery. Consequently, there is no practical difference in this law, for in any case—if there were no witnesses of delivery according to the one who holds that without witnesses of delivery it is invalid, as was written in section 3, it is also invalid here, even if we consider it like witnesses of signing. This is only according to the one who holds that it is valid without witnesses of delivery, and since for us it is a doubt—in any case it is a doubtful kiddushin. And if there are witnesses of delivery—it is obvious that in any case it is valid [see Chelkat Mechokek and Beit Shmuel]. Therefore, our teacher, the Rema, was precise to write regarding this that it is a doubtful kiddushin and did not write that some say it is valid and some say it is invalid, for even according to the "some say" who hold it is valid, there is only a doubtful kiddushin here since there are no witnesses of delivery. There is no practical difference in this law, except that we should not say that there is not even a doubt in such a kiddushin, for there is a doubt; but to be a certain kiddushin is not so even according to the opinion that validates his handwriting.

And according to this, there is one who wishes to say that in such kiddushin it is a sefek sefeika – a doubt whether the halacha follows the one who holds that handwriting is like the handwriting of witnesses, and if you say it is, a doubt whether the halacha follows the one who holds that witnesses of signing are effective without witnesses of delivery, and it is a sefek sefeika that is also reversible: a doubt whether witnesses of signing are sufficient, and if you say they are sufficient, a doubt whether handwriting is like witnesses, and it would be a sefek sefeika for validation. But it appears to me that this is not a sefek sefeika, and it is not similar to all cases of sefek sefeika where the doubt is in the essence of the act, perhaps it was thus or thus, and if you say thus, perhaps even in such a case it is valid; but here the act is clear before us and the doubts are regarding the law. If so, when we come to judge regarding this woman, it is a single doubt – whether she is unmarried or a married woman, and what difference does this doubt or that doubt make, and it is like a sefek sefeika of one name. Therefore, the primary ruling is like our teacher, the Rema, that this is a doubt of kiddushin.

If a shtar kiddushin written in handwriting comes before us and it is not known if there were witnesses of delivery there or not, we do not say that it was certainly done according to its law and there were witnesses of delivery there, for it can be said to the contrary to establish her in the status of an unmarried woman, and we shall say that there were no witnesses of delivery there and she shall be unmarried according to the opinion that invalidates kiddushin in handwriting; rather, she is a doubtful married woman and the kiddushin are invalid rabbinically until it is clarified that there were witnesses of delivery there. But if a shtar kiddushin signed by witnesses comes before us, we say that certainly there were also witnesses of delivery there and she is a married woman according to all opinions, and we do not say that perhaps there were no witnesses of delivery there and it is invalid according to the one who holds that it is invalid without witnesses of delivery. And if she received kiddushin from another as well, she requires a get from both of them, for even regarding a get it is valid in such a case, as I wrote in siman 133.

A shtar of kiddushin requires that the scribe write it for the sake of the woman, just as with a get where we require "lishma," and if he wrote it not for her sake—she is not betrothed. And he only writes it with the knowledge of the woman, and even though with a get one does not need the knowledge of the woman—this is because she is divorced against her will. Nevertheless, if he wrote it without her knowledge—there are some of our sages, of blessed memory, who validate it because since we derive it from a get, it is entirely similar to a get; and there are some of our sages, of blessed memory, who disqualify it, for in this matter it is not relevant to compare it to a get for the reason that has been explained. Therefore, if he wrote it without her knowledge—she is in a state of doubtful betrothal, and if she received kiddushin from another, she requires a get from both of them. However, if the second also betrothed her with a shtar and it was written without her knowledge—in any case she is not betrothed to the second [it appears to me].

Our teacher, the Beit Yosef, wrote that there is one who says that one must mention the names of the man and the woman in the shetar kiddushin just as one must mention them in a get. Thus far his words. And so too one must write the name of her city and the name of his city. And certainly this is so, since we derive it from a get. And so wrote the Rashba, that even though the Gemara did not mention the names, nevertheless it is obvious that this is so, and so it is explicitly implied in the Yerushalmi. However, if he did not mention the names, it appears to me that one may not release her without a get, even in a case where there is no concern regarding the paper that perhaps it is worth a perutah, such as where he stipulated with her that he is not betrothing her with money but only with a shetar, for there are some among the Rishonim who hold even regarding a get that when he did not write the names it is also a get according to our view, as we establish that the witnesses of delivery effect the severance and we do not require that it be evident from within it since the witnesses know. And if so, all the more so regarding kiddushin that it is impossible to release her without a get. And even though in the laws of gittin the poskim did not bring this opinion at all, and Heaven forbid even to join it to any leniency, nevertheless regarding a shetar kiddushin where we do not find it explicitly stated that one must mention the names, Heaven forbid to release her without a get. Therefore, it appears to me that for this reason our teacher, the Beit Yosef, wrote it in the name of "there is one who says," to inform us that only as a stringency must one be concerned for this and not as a leniency. And also the Rashba in a responsum appears somewhat uncertain about this; even though in his novellae he ruled decisively on the matter, nevertheless in a practical responsum it appears that he was concerned about this. See the Beit Yosef who brought it.

Our teacher, the Rema, wrote: If they wrote on something attached to the ground or on prohibited items of benefit – some say it is invalid and some validate, thus far his words. All the great authorities agreed that regarding something attached to the ground it is a complete invalidation, for even though regarding the law of money one may betroth even with something attached, as is explicit in the Tosefta that we cited in section 27, section 5, nevertheless, kiddushin of a document which we derive from a get – it is invalid. And those who validate also returned to their opinion and invalidated it simply [Chelkat Mechokek sub-section 7 and the Gra sub-section 9]. Conversely, regarding prohibited items of benefit, the opinion of many poskim is that it is valid, just as with a get written on prohibited items of benefit it is valid. Some distinguish between a Torah prohibition and a rabbinic one, and we have already explained what appears to us in this matter in siman 28, section 97, see there, and in practice one should be stringent.

Date – one does not need to write it in a shetar of kiddushin, for even a get is valid according to the Torah without a date, and it was only the sages who enacted to write a date in a get. Regarding kiddushin they did not enact this because most people perform kiddushin with silver; therefore, even for one who performs kiddushin with a shetar, they did not enact it [Yevamot 31b]. Furthermore, the primary reason they enacted a date in a get is because of the "enactment of zenut," as I wrote in siman 127, and in kiddushin this is not applicable, for she could erase it and we would establish her under the presumption of being an unmarried woman. However, in a get she would not erase it, for we would establish her under the presumption of being a married woman, and through the date it would become known when she committed zenut; but this is not so in kiddushin [ibid.].

And even if he betrothed with an invalid deed, such as where he wrote it not for her sake or some other invalidity, nevertheless, we appraise the paper; if it is worth a perutah—she is betrothed when he betrothed her in the presence of witnesses, and if not—she is betrothed out of doubt, lest it is worth a perutah in another place. And even though he betrothed her with a deed, having said "I betroth you with this deed," nevertheless, as long as he did not say "I am not betrothing her as money but only as a deed," it can be said that his intention was also for betrothal of money, and this is what he meant: "I betroth you with this deed as money," just as if he says "I betroth you with this ring." And it is explicitly explained from the words of the poskim that when it is worth a perutah, she is certainly betrothed as betrothal of money, and we say that her mind was also on the paper. And so it is implied in the Gemara [48a], and so it is explicit in the Yerushalmi, and the Rif, of blessed memory, brought it in the first chapter. The Rambam, of blessed memory, omitted all of this and I do not know why; perhaps he interprets that this is specifically if he betrothed her as money, but it does not seem so, and it requires further study. Nevertheless, it appears to me that if she or he says that they had no intention at all to be betrothed with the paper as money—this is nothing but a doubtful betrothal even if it is worth a perutah [and perhaps the Rambam holds that one must ask them, and they are believed when they say their intention was not for the paper unless they say their intention was for the paper, and if so, there is no novelty in this and therefore he omitted it].

If he betrothed her with a shetar and said to her, "Behold, you are betrothed to me with this shetar and the paper is mine" – she is not betrothed, for it is found that the letters are flying in the air and he gave her nothing, and we require that he deliver the shetar to her as with a get, which is nothing in such a case as has been written in siman 143. And likewise, if he said to her, "on condition that the paper is mine," our teacher, the Rema, ruled that she is not betrothed. And there is one who says that in any event it is a case of doubtful kiddushin, for since he said "on condition," it is not a reservation in the shetar but rather a condition, and it is a condition and an act in one thing, and in every case of a condition and an act in one thing, the condition is void and the act stands, but from the words of our teacher, the Rema, in siman 38, section 4, it is proven that he does not hold of this law, see there, for he did not concern himself with it except as a mere stringency, and there it will be explained with the help of Heaven. And if he said to her, "on condition that you return the paper to me," in a get it is effective as has been written in siman 143, and in kiddushin it appears that it is also effective, for a gift on condition that it be returned is considered a gift. And even though regarding kiddushin of money it was explained in siman 29 that it is not effective, see there, nevertheless, regarding kiddushin of a shetar, where the essence of the kiddushin is not in the value of the paper, it is effective, for the letters are not flying in the air since for the duration of the kiddushin the paper is hers, and there it will be explained with the help of Heaven.

If one stole paper and wrote a shtar kiddushin upon it and betrothed a woman with it, and the owners had not yet despaired—it appears that it is not certain kiddushin, for since the paper is not hers, it is no better than when he says "the paper is mine," in which case she is not betrothed. However, one could say that since the paper was changed by the writing, he has acquired it through change and shall return the monetary value to him, and the paper is his and it is complete kiddushin. This requires further study, for if he wrote with ink that can be erased, it is a change that can return to its original state and he has not acquired it. [And in Yoreh Deah siman 267 section 68 we clarified that two women are not betrothed with one shtar just as with gittin, and there is clear proof for this from Gittin 9b: where it does not challenge "and are there no more," see there and reflect upon it].