Siman 35

A man may appoint an agent to betroth a woman for him with kiddushin of money or a document, and the agent says to her, "Behold, you are betrothed to so-and-so." For it has already been explained in Choshen Mishpat siman 182 that throughout the entire Torah, a person's agent is like himself. And even though for a mitzvah incumbent upon a person's body he is unable to appoint an agent, just as he cannot appoint an agent to don tefillin for him, nevertheless, we explained there that for the preparation of a mitzvah one may appoint an agent. Kiddushin of money or a document is a preparation for a mitzvah, for the mitzvah itself is procreation, as is written in siman 34 section 2; therefore, regarding kiddushin of cohabitation, agency is not applicable at all. And he may appoint an agent whether to betroth for him any woman or a specific woman. Nevertheless, it is not proper ab initio to appoint an agent to betroth for him any woman [Beit Shmuel], for if the agent dies before it is known whom he betrothed for him, he will be forbidden to all women, as will be explained with the help of Heaven.

And specifically when it is not within his power to betroth by himself, but when it is possible for him to betroth her himself—it is forbidden for him to betroth via a messenger, and thus the sages, of blessed memory, said: It is forbidden for a man to betroth a woman until he sees her, lest he find in her something repulsive and she become loathsome to him, and the Merciful One said, "And you shall love your neighbor as yourself" [beginning of chapter 2]. Therefore, when he does not know her, it is forbidden for him to betroth via a messenger when it is possible to betroth her himself, for if it is not possible, one should not cancel the mitzvah for this reason; and if he knows her, it is permitted for him ab initio to betroth her via a messenger. Nevertheless, there is more of a mitzvah to betroth her himself even when he knows her, when it is possible to betroth her himself, for "a mitzvah is greater when performed by him than by his messenger," as with all mitzvot. And likewise, it is more of a mitzvah that the father betroth his daughter himself and not via a messenger [Beit Shmuel]. And as for that which we are not careful in this and make shidduchin and the chatan does not see the kallah, it is because before the kiddushin he sees her, and if she is not pleasing in his eyes, he will cancel the shidduch [ibid.]. And they wrote other reasons for this; however, ab initio it is certainly more proper that the chatan see the kallah before the shidduchin, for if not so, perhaps even if before the chuppah she is not pleasing in his eyes, he will be ashamed to break the conditions. And in our lands, the custom has now spread that they see one another before the conditions, and it is a proper custom built upon the line of the law and upon peace.

We hold that in all agency, an agent may appoint an agent, for since a person's agent is like himself, he is like the principal himself and may appoint an agent. Furthermore, we hold that "words cannot be handed over to an agent," meaning specifically that agency involving an action, such as one who sends a get to his wife, the first agent can appoint a second agent; but agency involving words, such as when he made him an agent to write the get—the agent has no power to appoint another agent in his place, for words do not have the power to be repeatedly handed over to another, as written in siman 120, and we explained this in Choshen Mishpat siman 244, see there. Therefore, regarding agency for kiddushin, if he handed over money or a document to the agent so that he should betroth her with this money or this document—he may appoint another agent in his place if it is difficult for him to perform it himself, such as if he fell ill or another mishap occurred to him, and he hands over to him the kiddushin that the husband handed to him. But if the husband did not hand him the kiddushin but rather said to him that he should betroth her with any money he desires—he may not appoint another agent, for it is "words." And some say that regarding kiddushin, in any case an agent may not appoint an agent, even when he handed the money or document to the agent, for the handing over of the kiddushin is "words" and is not comparable to a get; for as soon as the get comes into the hand of the agent it is like an action since he can hand it to her against her will, but kiddushin, which depends on her consent and perhaps she will not desire to receive it, is called "words." And there are those who distinguish between money and a document, for a document, where he must necessarily betroth her with this document, is not "words," but money, which he can exchange for other money, is called "words" [see Beit Shmuel subsection 15]. And in the Yerushalmi, chapter 3 of Gittin, halacha 5, it is explicitly stated like the "some say" that an agent does not appoint an agent for kiddushin, for it is a query there and was not resolved, and so it implies there at the beginning of chapter 4. And even though in our Shas it does not imply so, nevertheless, since it is not explicitly explained in the Shas that he can appoint an agent, and in the Yerushalmi it is explained that one should not appoint—we hold like the Yerushalmi. Nevertheless, it seems to me that in our Shas it is explicitly explained to the contrary, for a gift is similar in this to kiddushin, that he cannot force him to receive a gift, and in the Shas we say [Gittin 29a] that a gift is like a get, and so we hold in Choshen Mishpat there, and the law requires further study. [And also the Yerushalmi can be interpreted that this is what it says: even in kiddushin so, that he can appoint, and it asks: what is the difference between etc., meaning it is obvious, and it answers: everything is within his power to divorce etc., meaning that because of this I would have distinguished, it comes to teach us that no; but at the beginning of chapter 4 there it is impossible to interpret so, see there. And one can distinguish between a gift and kiddushin, for a gift is a benefit and one may acquire a benefit for a person in his absence and it is as if it came into his hand, which is not the case with kiddushin, and it requires further study.]

All are fit for the agency of kiddushin, whether a man or a woman, even a relative or one disqualified, except for a deaf-mute, an insane person, and a minor because they are not possessed of understanding, and a star-worshiper because he is not a member of the covenant, and a slave because he is not within the law of kiddushin. And there is one who says that regarding a get, a slave is fit to be an agent for delivery, and our teacher, the Beit Yosef, in siman 141, was concerned for this opinion that it should be a doubt, see there, and certainly in kiddushin it is also so. And the fact that he did not bring this opinion in this siman is because most of our teachers disagree on this and for the law the primary view is so, and only because of the gravity of the subject matter must one be concerned also for this opinion. And only because this opinion is in the context of gittin, for there is the discussion of the Shas, therefore our teacher, the Beit Yosef, relied on what is there [and so it appears from the Gra, subsection 14, and what the Beit Shmuel wrote in subsection 14 that the Beit Yosef wrote there that the same applies to kiddushin, it is not there, and nevertheless the law is true and the words of the Avnei Miluim, subsection 9, are not primary, for according to most opinions even in a get the verbalization is indispensable as written in siman 136, and conversely in a shetar kiddushin when she knows what is written in the shetar the verbalization is not indispensable as written in siman 32, and his words are puzzling, and examine this well].

Our teacher, the Rema, wrote in section 6: One who sends a letter via a koti to his fellow Israelite in another place and appoints him to be his agent to betroth a woman for him, some say that its law is like in cases of gittin, and some say that regarding kiddushin, according to everyone she is betrothed according to the Torah. Thus far his words. And certainly even in gittin it is valid according to the Torah in such a case, and those who are stringent regarding a get do so only as a mere stringency, as is written in siman 141, and there the matters will be explained with the help of Heaven. And the custom has already spread to send a get via the post office, and all the more so regarding kiddushin there is no concern in the matter, and so the great later authorities agreed; nevertheless, where it is not a situation of pressing need, one should not do so, but according to the law there is no concern in this [see Chelkat Mechokek subsection 18 and the Gra siman 141 subsection 73], and to send a letter that the agent should betroth her with his own money, there is no concern at all in this [Beit Shmuel].

We hold that a messenger may become a witness in the matter for which he is a messenger. And even though "a person's messenger is like himself," nevertheless he is not disqualified from testimony, for the litigant himself who is disqualified from testimony is so because he is an interested party, and this messenger is not an interested party, so why should he be disqualified from testimony? On the contrary, he is a better witness and strengthens the testimony since the matter was performed through him [see Rashi 43a s.v. "alumei"]. Therefore, when one sends a messenger to betroth a woman for him and there is another person in whose presence the messenger betrothed her, there are two witnesses here for the kiddushin. And if he made two people messengers to betroth her, other witnesses are not required; they are his messengers and they are his witnesses. And so it is with a get and so it is in monetary laws, as is written in Choshen Mishpat siman 121.

And even if the agent comes for his wage, having been hired for this agency—he is not disqualified for this testimony [Ran ibid.], and specifically if he was hired for this sum whether he completes the matter or does not complete it; but if there is a difference in his wage between whether he completes the matter and whether he does not complete it—it is obvious that he is disqualified for testimony, for you have no greater interested party than this, as his desire is that the kiddushin be valid so that he may receive a greater wage. And since an agent becomes a witness, if there were two agents and they testify that they betrothed her on behalf of the sender and she denies them—she is not believed and she is fully betrothed.

And the Tur wrote: To what do these words apply? When there is no denial of money, such as when he betrothed her with a document or even with money and they say they gave it for the sake of kiddushin and she says for the sake of a deposit; but if there is a denial of money, where she said "I did not receive anything at all," they are not believed. Thus far his words. For they are interested parties in their testimony, as if it is according to her words, they are obligated to return to the sender what he gave them, and since there is a contradiction, they are obligated to swear, and any witness who requires an oath is not a witness. However, the Rambam, of blessed memory, did not make this distinction, as it could be said that since according to the Torah an oath is not required—and a Torah oath is only in a case of partial admission—therefore, even though according to the Rabbis they are obligated to swear, this does not have the power to disqualify their testimony. Therefore, for the law, when there is a contradiction between them, it is a case of doubtful kiddushin, and so ruled our teacher, the Beit Yosef, in section 2. And one should not wonder at the reasoning of the Rambam, for after all they are interested parties in their testimony since according to the Rabbis they are obligated to swear, and necessarily if they do not wish to swear they must return the money, and you have no greater interested party than this; for it could be said that nevertheless, if Elijah were to come and say that the witnesses gave her the money for the sake of kiddushin, she would certainly be betrothed, and the deficiency is on our part due to our lack of knowledge, therefore one cannot at least remove it from the status of doubtful kiddushin. Furthermore, there is no complete interest here in their testimony, for if they do not testify about the kiddushin and say "he did not give us money to betroth her," they must swear against him, and if they testify, they must swear against her, and in either case they must swear; rather, their disqualification is not because of the interest, but because we say that any witness who requires an oath is not a witness, and this disqualification is only rabbinic.

And there are some of our teachers who hold that regarding kiddushin of money, even when she admits, it is only a doubtful kiddushin. The reason is that since without her admission the testimony is not effective, as the Tur wrote, if so, the entire testimony is validated through her admission, and it is like one who betroths without witnesses [Ran and Rashba]. And according to this opinion, that which a messenger becomes a witness in kiddushin is only in kiddushin of a document and when the document does not have the value of a perutah, for if it has the value of a perutah, its law reverts to that of money. And in truth, there is a dispute in the Yerushalmi regarding this, and its conclusion appears to rule that when there is no denial between them, it is a certain kiddushin. The Rosh [Chapter 2, Section 4] cited it; see there. And the Tur and the Shulchan Aruch did not cite this opinion at all. Nevertheless, it is the opinion of the great Acharonim to be concerned for this opinion, and according to this, in kiddushin of money in any case it is a doubtful kiddushin [see Chelkat Mechokek subsection 2 and Beit Shmuel subsection 3]. And it appears to me that even according to this opinion, if there is one witness who testifies that he gave it to her for the sake of kiddushin, there is no doubt here, for in this case it is impossible to obligate them in an oath, as a supporting witness exempts from an oath, as is written in Choshen Mishpat siman 75. And according to this, even when she denies, one could say that in such a case it is kiddushin. And some say that even this is not effective according to this opinion, for since they are not believed based on their own words but only through the supporting witness, they do not have the status of testimony [Beit Shmuel end of subsection 5]. But this is not clear, for if so, in any testimony where they come to disqualify the witnesses and others testified to validate them, such as conspiring witnesses and witnesses who conspire against them, we would also say that the testimony of the first ones is void because their fitness is only through others. Rather, certainly their testimony stands since the disqualification has been removed from them, and here too it is so. And it is not similar to the core of this opinion that when she admits to them it is not certain kiddushin, for that is because the core depends on her admission and there are no witnesses here; but when it does not depend on her admission, but rather their disqualification is due to the obligation of the oath, when there is a witness who removes the oath, they remain in their fitness [and so it appears from Maharik, whom the Beit Shmuel himself cited].

However, when there is one agent and he has one other person testifying with him regarding the kiddushin, even though this witness also assists him and exempts him from an oath, nevertheless there is room for doubt in this matter because in such a case the primary testimony rests upon one of the witnesses of the kiddushin, and in testimony we require that the matter be finalized by two witnesses equally [Chelkat Mechokek at the end of subsection 3]. Nevertheless, it is simple that for stringency one must consider them fit witnesses [like that of the Maharik section 28 to be concerned for sevlonot by way of an agent and a witness, and there is great need for further study on the Beit Yosef who wondered about him, and also there is need for further study on the Beit Shmuel who cited it for leniency, and delve into this].

And some say that for another reason a supporting witness is of no avail here, for our teacher, the Rema, wrote in Choshen Mishpat siman 87, section 6, that a supporting witness only exempts when the defendant claims a claim in which he can be believed without a migo, but if they only believe him by power of a migo because he claims another claim, he must swear as if he claimed the other claim. Thus far his words. And if so, they are still interested parties in their testimony, for they are forced to say they gave it to the woman, for if they say they returned the money to the sender, they would be required to swear, as in this they have no supporting witness. Therefore, it is better for them to say they gave it to the woman, for in this they have the supporting witness and are exempt from an oath. And if they say that even now they shall swear they gave it to her, behold, a witness who requires an oath is not a witness.

And it appears to me that it is not comparable, for there both claims belong to one man, such as in the case of a collateral where he can exempt himself with the claim "I returned it" and the claim "it was lost to an accident," and for one claim he has a supporting witness but not for the other; however, here, where the husband does not contradict them and speaks as they do, and only she contradicts them, and since they have a supporting witness against her, they are rightly exempt from an oath and are not like those who have a personal interest in the matter. Furthermore, in truth, this is not a complete migo that we should judge like all other migot, as I wrote in our work on Choshen Mishpat, siman 296, section 4, see there [and aside from the fact that the Shach disagrees there, see there].

Some say that if the husband exempted them from an oath at the outset, at the time he sent them, so that they would be believed to say whatever they wish—in any case it is certain kiddushin, for there is no need for an oath at all even if he contradicted them, as they can say "we returned it to the sender" and he exempted them from an oath. However, if the husband wishes to exempt them from an oath now—it is not effective, as is written in Choshen Mishpat siman 121, because it can be said that for the sake of the benefit that he exempted them, they are testifying for him. And there are those who hesitate even if he exempted them beforehand, and there is no correct reason for this hesitation, and so it is implied from several great Rishonim that it is effective, and likewise in Choshen Mishpat there, there is no other opinion regarding this.

And so too, if he went with the messengers and stood from a distance and saw that they fulfilled their mission, it is effective, for now there is no need for an oath. However, according to the opinion of our teacher, the Rema, in Choshen Mishpat there, it is a case of uncertain kiddushin; and how can we effect certain kiddushin based on his word, for it turns out that the kiddushin are finalized only through the statement of the husband and not through witnesses? Therefore, if there are witnesses to this—that the husband saw the mission—certainly they are witnesses to the kiddushin, for now we do not need the words of the husband. And so too, regarding the law that was explained, that if the husband exempted them from an oath, witnesses are required for this; for if not so, it turns out that all the essentials of the kiddushin are finalized by the husband and not by witnesses, and they are not kiddushin, just as when they are finalized by the woman according to the opinion explained in section 9, and this all requires further study regarding the law. Consequently, kiddushin via messengers are not certain kiddushin unless they betrothed her via other witnesses; and if they themselves are the witnesses, they should betroth her via a document that does not have the value of a perutah, and in this we will not be stringent to say perhaps it has the value of a perutah in another place [Taz]. And if they betroth her with money, they need witnesses that the husband delivered it to them and that they delivered it to her for the sake of kiddushin, and then there is no doubt regarding the kiddushin.

If they all admit to the kiddushin, but she says that they betrothed her with a perutah and they say that they betrothed her with a maneh that the husband gave them to betroth her with—the agents shall swear a shevuat hesset that they gave her the maneh, and she is exempt from swearing, for even according to the words of the agents they gave it to her for the sake of kiddushin and it is hers, so why should she swear [Beit Yosef in the name of Rabbeinu Yerucham]. And even though since the witnesses require an oath they are not complete witnesses for the kiddushin as I have written, and if so, according to this she must return the kiddushin and why should she not swear, for in truth the kiddushin does not return in any event, for in any case it is a case of doubtful kiddushin, and how can we say that she should return the kiddushin, for they will come to say that there is no kiddushin here at all and kiddushin will take effect with her sister as I have written in siman 50; therefore we do not allow her to return the kiddushin and consequently she does not require an oath [Makneh].

The Rambam, of blessed memory, wrote in chapter 3, law 15: Anyone who appoints a messenger to receive kiddushin must appoint him before witnesses, but a man who appoints a messenger to betroth a woman for him does not need to appoint him with witnesses, for there is no role for witnesses in the messenger of the man except to make known the truth of the matter; therefore, if the messenger and the sender both admit to it, witnesses are not necessary, just like a messenger for a get and like a messenger whom he authorized to separate terumah for him and similar cases in every place where a person's messenger is like himself and witnesses are not necessary. Thus far his words. And behold, also in chapter 6 of Divorce he ruled accordingly regarding a get, that a messenger for delivery does not need witnesses and a messenger for receipt needs witnesses, and the Rambam compared kiddushin to divorce in this, but in chapter 9 of Divorce, law 32, he himself explained that when there are no witnesses signed on the get, then two witnesses are required for the appointment of the messenger, see there, and if so, in kiddushin where there are no signing witnesses here, why should we not require witnesses just as in a get? [And this is the difficulty of the Remakh brought by the Kesef Mishneh as written by the annotator in the Mishneh LaMelekh].

And it appears to me regarding the opinion of the Rambam, of blessed memory, that it is certainly so that there is no requirement for witnesses for agency in the entire Torah. And even regarding gittin and kiddushin, even though there is no matter of ervah with fewer than two, this is at the time of the performance of the kiddushin and the divorce, at the time the agent betroths her or divorces her, and not at the time of the agency. However, when she appoints an agent for receipt, whether for kiddushin or for gittin, she requires two witnesses for the agency. And this is not due to the laws of agency, but because this person was initially forbidden to the entire world and after the divorce she is permitted, and in kiddushin it is the opposite; if so, how is it possible that she should transition from a state of prohibition to a state of permission, or from permission to prohibition, in a matter of testimony without witnesses hearing? And granted that a person's agent is like himself and it is as if she received the kiddushin and the get, nevertheless, ultimately witnesses did not hear from her mouth any word at all, and how shall this person transition from prohibition to permission or from permission to prohibition? But the husband, his person does not change at all, for he is always permitted to all women, and the essence of his ervah matter is only at the time of the kiddushin and the divorce, for then she becomes forbidden to the entire world or permitted to the entire world, and he also forbids himself to her relatives or other obligations in kiddushin, and in gittin he is released from his obligations; and this is like all other acts of agency, but his actual person did not transition from prohibition to permission or from permission to prohibition. And that which necessitated witnesses of agency for a get when there are no witnesses of signature is a different matter: for behold, according to what we establish that witnesses of delivery effect the severance, the verse "and he shall write for her" refers to the writing of the get, that he shall write it for his sake and for her sake and for the sake of divorce, and without this it is not a get at all. And according to this, granted that at the time of delivery there are two witnesses, but behold, the essence of its validity depends also on its being written lishmah, and who testifies to this? It is well when there are witnesses signed on the get, for they are as if they testify that it was written lishmah; but when there are no witnesses, who testifies to this? Therefore, two witnesses must hear when he makes him an agent to deliver this get to her, and it is as if they know it was written lishmah, like witnesses of signature [and the source of the Rambam is from Gittin 63a, where it is explained that for her agency witnesses are required, and from Kiddushin 45b it is proven that for his agency witnesses are not required, see there; and the Yerushalmi brought by the Rosh at the beginning of the fourth chapter of Gittin deals with a case without witnesses of signature, as is proven there; and examine this carefully].

Regarding that which the Rambam wrote, that if the agent and the sender both admit there is no need for witnesses, our teacher, the Rema, wrote that it is not called an admission unless he admitted before witnesses in the manner of an admission; thus far his words. This means that he must say "you are my witnesses" or say it in the manner of a complete admission and not in the manner of mere conversation, as is written in Choshen Mishpat siman 81. And even though the claim "I was mocking you" or "so as not to appear wealthy" does not apply to kiddushin as it does in monetary laws, nevertheless, he can provide another pretext, such as so that another should not precede him or similar to this. And there is one who wishes to say that this is only regarding an agency for receipt and not for delivery, but it is not the primary view and there is no distinction in this, for in truth the essence of this law is only regarding a denial, when he denies and says that he did not make him an agent. When he admitted before witnesses that he made him an agent, he can no longer deny them, even though the witnesses were not present at the time he made him an agent according to his system that we do not require witnesses for an agency of delivery; but regarding receipt, he indeed holds that we require witnesses at the time of the agency, as has been written.

And there are some of our teachers who hold that even regarding an agency for delivery, witnesses are required, for there is no matter of ervah with fewer than two, and regarding a get we do not require witnesses for delivery because his get proves its own status, which is not the case regarding kiddushin [Ra'avad]. According to this, when he sent him with a deed of kiddushin—even regarding kiddushin witnesses are not required [Beit Shmuel]. And it appears to me that this is only when witnesses are signed on the deed, but if he commanded him to betroth her only with witnesses of delivery alone—it is nothing. However, the Tur ruled in siman 141 that even regarding an agency for delivery of a get witnesses are required, and according to this, even regarding a deed of kiddushin witnesses are required. And although there is room to distinguish for a reason that will be explained, nevertheless, in the law it does not appear proper to distinguish in this, and if there were no witnesses it would be a case of uncertain kiddushin according to this opinion [see Beit Shmuel subsection 7, and examine closely].

And there are some of our teachers who incline to say the opposite, that regarding kiddushin, even with a shaliach for receiving, witnesses are not required, and it is not similar to a get which comes to permit a married woman and is impossible without witnesses, but not so in kiddushin [the Rosh], for since she is prohibiting herself, just as the husband’s admission is sufficient for the agency, so too is her admission; and one should be concerned and act stringently and be concerned for this opinion regarding agency for receiving without witnesses, to require her to have a get, and our teacher, the Rema, ruled accordingly there.

One who sent a messenger to betroth her, and the messenger says and also the woman says that he betrothed her, but the witnesses of the kiddushin are not before us, and the messenger and the woman say that the witnesses died or went to a province overseas; even though she is under the presumption of being a married woman, for there is a presumption that a messenger performs his mission, nevertheless, if another man came and betrothed her—she requires a get from him as well, for we do not say this presumption that a messenger performs his mission for leniency, but only for stringency. And even though a man and woman who come before us under the presumption that he is her husband, the kiddushin of another do not take effect even though there are no witnesses here other than the presumption of their conduct as husband and wife, we do not compare the presumptions to one another [Beit Shmuel, subsection 9], for there the presumption is from their own essence, but here the knowledge of the husband is only by virtue of the presumption that a messenger performs his mission. Therefore, even if there are witnesses that the husband made him a messenger, nevertheless, since there are no witnesses that the messenger betrothed her, we are concerned for the kiddushin of another [ibid.]. However, if they were together as husband and wife, even though he did not see the witnesses of the kiddushin, nevertheless, since they were subsequently as husband and wife, we are not concerned for the kiddushin of another, for we do not investigate this presumption as to how the kiddushin occurred; and also, since it is known to all that they are husband and wife, the presumption of the messenger that he performed his mission is automatically strengthened [it appears to me].

Our teacher, the Rema, wrote: If there are no witnesses to the matter and the sender denies that he made him an agent, some say it is a case of doubtful kiddushin, and some say she is not betrothed at all – and so it appears to be the primary view. Thus far his words. And his reasoning is that any single witness in the face of a denial is nothing, and even though he performed an act and betrothed her for him before witnesses, nevertheless, since he denies it and says that he did not make him an agent and we do not have witnesses before us that he made him an agent, this is nothing. And even a father who received the kiddushin of his adult daughter and she denies that she made him an agent – she is not betrothed when there are no witnesses before us regarding the agency, and certainly so regarding another person when the woman denies him, saying she did not make him an agent for reception. For it is a great principle that a single witness in the face of a denial is not believed. However, if there is another person with the agent who testifies like him, or if there are two agents and they are fit for testimony – they are believed, for an agent becomes a witness as has been written.

And regarding that which he decided leniently, it requires further study, for since he performed a significant act to betroth her, it is difficult to release her without a get, and it appears that we compel him to give her a get, for she is forbidden to the world since she does not know if he is telling the truth or the agent, and this is not similar to any case of a witness based on a witness where if the first contradicts him the second is not believed, for the agent is not a witness but rather says that he made him an agent and testifies about himself and not about others. And even though the sender can say "I will not give a get for it is not pleasing to me to forbid her relatives to me," nevertheless, since she did not sin and the agent stands and cries out that he made him an agent – we compel him to give a get. However, if she died without a get, the sender is not forbidden to her relatives even according to the first opinion since he denies the agency, and only regarding the woman herself, since she cannot contradict him, is she in a state of doubtful betrothal. And all this is regarding agency for betrothal of money, but regarding agency for betrothal of a document – its law is like that of a get which will be explained in siman 141, for in this his law is like a trustee and it is a doubtful betrothal.

The Tur wrote in the name of the Rosh that even if he did not explicitly appoint him as a messenger, but rather he revealed his intent that he desires a certain woman and told him to arrange a match for him, and he went and betrothed her without a formal appointment of agency—she is betrothed to him. But if he did not tell him to arrange a match for him and he went and betrothed her to him—she is not betrothed, and we do not concern ourselves that perhaps he made him a messenger; it makes no difference if the one performing the betrothal is his father or a stranger, and even if he consented to the betrothal when he heard, it is nothing. Thus far his words. And it is a simple matter that according to the one who holds that agency requires witnesses, he must reveal his intent before witnesses and request of him to arrange the match. And the reason that explicit agency is not required for betrothal appears to be because one may acquire a benefit for a person in his absence, and since he requested that he arrange the match for him, it is like agency, for acquisition is by way of agency. But when he did not request to arrange the match for him, even though he revealed his intent, this is nothing, for revelation of intent regarding betrothal is of no consequence, unlike regarding bills of divorce as will be explained in siman 141, see there. Therefore, it is not effective even when he consents afterward to the betrothal, because the prior act has no substance [it appears to me], but when he requested that he arrange the match for him, it is like actual agency as I have written.

He further wrote in the name of our teacher, Meir HaLevi: If the father presented the matters before the son, that he wishes to betroth her to him, and the son remained silent, and the father went and betrothed her to him—it is a complete kiddushin, for due to the shame before the father he remained silent and made him an agent to betroth her to him; but with another person in such a case—it is a doubtful kiddushin. Thus far his words. For he holds that when the agent presented the matters before the principal, that his desire is to be his agent to betroth her on his behalf and he remained silent, it is a doubt whether he consented to make him an agent and his silence is like an admission, or perhaps he did not consent, and as for why he did not say "I do not desire this," it is because he did not care to answer him. But with a father, it is impossible to say that he did not care to answer him, and his silence is like an admission; and that which he did not explicitly say to him that he should be an agent is because of the disgrace, as he was ashamed to tell his father to be an agent on his behalf. And there are those who disagreed on this and hold that even with a father it is only a doubtful kiddushin; for is it not possible to say that it was not because of disgrace that he remained silent, but rather that he did not consent or he had a doubt in the matter [Maharshal]? And even though we explained the matter, that with another it can be said that he did not care to answer him at all but with a father it is impossible to say so, nevertheless, to make it a certain kiddushin is a difficult matter.

And know, that even though this opinion disagrees with the opinion of the Rosh that we brought in the discussion of the Shas [45b: for the Rosh interprets "appeasing" as referring to the son and the Ramah interprets it as referring to the father], nevertheless, regarding the halakhah it is possible they do not disagree, and so it is implied from the wording of the Tur. It could be that the Rosh also admits that when the agent proposed before the sender to be an agent and he remained silent, it is a case of doubtful kiddushin. And even though our teacher, the Beit Yosef, in his great work wrote that they disagree, nevertheless, in the Shulchan Aruch it is implied that he retracted, for he arranged the two laws in section 4 and section 5 without disagreement [and so wrote the Beit Shmuel, that they do not disagree]. Also in his great work his intention was that according to the Rosh this law is not proven, but nevertheless it can be said that he does not disagree regarding the halakhah.

It is a simple matter that if the agent denies his agency and she says that he betrothed her on behalf of the sender, and there are no witnesses here, she has made herself a "forbidden piece" and he gives her a get; however, we do not compel him to give a get if he does not admit to the agency of the agent.

An agent who deviates in a matter of his agency—his agency is void, as is written in Choshen Mishpat there. And it is not only necessary to state this regarding a complete deviation, such as where he commanded him to betroth her on a condition and he betrothed her unconditionally, or vice-versa; but even if he deviated regarding the location, such as if he said, "Betroth so-and-so for me in such-and-such a place," and he betrothed her in another place—she is not betrothed. This is because he can say, "In this place it is pleasing to me that she be betrothed because I have many friends there and they will not speak ill of me, which is not the case in another place" [Gemara 50a]. And certainly this is so if he deviated in some matter of a condition. However, if he said to him, "Betroth so-and-so for me, and behold she is in such-and-such a place," and he betrothed her in another place—she is betrothed, for he did not say this to him because of a specific insistence, but rather he was merely showing him her location, as he did not say to him, "Betroth her in such-and-such a place," but rather, "and behold she is in such-and-such a place." And such is the law regarding the agency of a get, as is written in siman 141.

One who appoints an agent to betroth a specific woman for him, and the agent went and betrothed her for himself—this is a practice of deceit. The Rambam, in chapter 9, law 17, wrote that he is called a wicked person, like a poor person turning over a cake and another comes and takes it. The Tur and the Shulchan Aruch did not write that he is called a wicked person, for they followed their own reasoning in Choshen Mishpat, siman 237, that regarding a gift or a lost object one is not called a wicked person, see there, and kiddushin is no worse than this. The Rambam, however, holds that in every case he is called a wicked person. Nevertheless, what he has done is done, and she is betrothed to the agent when she knew that he betrothed her for himself and she consented and accepted. And even if he did not appoint him as an agent but rather said to him, "When you go there, betroth for me a specific woman," and he went and betrothed her for himself, nevertheless, this is a practice of deceit since this one relied upon him and he deceived him, even though he did not designate him in his agency to go on his behalf, but rather incidentally when he goes for his own business he should betroth her on his behalf [Beit Shmuel]. And it appears to me that in such a case, even according to the opinion of the Rambam, he is not called a wicked person, but rather a deceiver.

And specifically if he betrothed her with his own money, but if he betrothed her with the money of the sender – there is no betrothal here, for they are gazel in his hand, and one who betrothes with gazel, she is not betrothed, as I wrote in siman 28. And some say that this is specifically when the agent does not currently have other money to exchange in place of the sender's money and give them to the sender, or even if he has them but there is a meticulousness regarding exchanging them, such as if the sender's money is better or if he betrothed her with an object belonging to the sender; but if he betrothed her with the sender's money and the agent has other money like it to deliver to the sender – she is betrothed, for in this case it is not applicable that he betrothed her with gazel, since he betrothed her with his own. And some disagree on this, for this is only in the case of one who deposits money when it is permitted to use it and he will return others to the depositor, but in the case of an agent, he is an absolute gazlan and has no permission to exchange them, and wherever they are, they belong to the sender unless he gave him permission to spend them and exchange them. And it appears that they do not disagree, for certainly if the sender delivered to him bound money, he has no permission to exchange them, but if he delivered to him open money and the sender knows that the agent also has money and will place them together with his money, and it is not the way of the world to be meticulous regarding these coins or those coins – certainly the primary view is like the first opinion. And if it is difficult: when he betrothed her with the sender's money, why should she not be betrothed to the sender, as in the case of a sale in Choshen Mishpat siman 183? For there we say that the seller transferred ownership to the sender, but in betrothal, how could she be betrothed to the sender when he did not betroth her on his behalf?

And behold, it is no novelty at all that when the agent betrothed her to himself she is betrothed, for why should she not be betrothed to him? Is it because he acted with deceit that she should not be betrothed to him? Rather, even if upon his arrival to the woman he said to her that he came to betroth her on behalf of his sender, and all his words until the kiddushin were so, but at the time of the kiddushin he betrothed her to himself and she understood that he betrothed her to himself and did not protest the matter – she is also betrothed. And we do not say that since until the moment of the kiddushin their intention was for the sender, if so we should say that this which he said "to me" meant for his agency to betroth you on behalf of the sender, and even though they changed their minds it is "matters of the heart" – we do not say so, for the explanation of "to me" is literally "to me" and this is not "matters of the heart." And since both of them say that their intention was for the agent – she is certainly betrothed to him when he betrothed her with his own money, as has been written.

But if she says that she did not understand at all that he was betrothing her to himself, and she thought that he was betrothing her to the sender—she is not betrothed to the agent, and certainly she accepted the kiddushin from him based on what he said to her initially, to betroth her to so-and-so, and she is believed when she says so. It is also simple that she is not betrothed to the sender either, for the agent did not betroth her on his behalf; therefore, she does not require a get from this one or from that one [Taz]. There is one who is stringent to require a get from both of them, but there is no reason for the matter [Beit Shmuel], if not for the sake of those who see and hear [Perisha], so they should not say a married woman leaves without a get. Therefore, if this matter was revealed to all who saw at the time of the kiddushin, that the agent deviated and she did not consent to be betrothed to him, it is obvious that there is no cause for concern [and as for why the Tur did not mention this wording, it is because it is simple].

If the agent said, "Behold, you are betrothed to me," and says himself immediately that he erred and his intent was to betroth her to the sender, our teacher, the Rema, wrote that he is believed to say that he erred, for there is a basis for the matter that he erred since he is the agent of the sender, and there is a presumption that an agent performs his mission, and until the kiddushin he spoke with her on behalf of the sender; how then would he suddenly betroth her to himself? For it is a near certainty that she would not consent to be betrothed to him, and no person of reason does such a thing; therefore, he is believed. And what is the law regarding the kiddushin? There is one who says that she is betrothed to the first, meaning to the sender, and "to me" refers to my agency, as written in section 31, and this is if he says that he said "to me" without any intent, and consequently it will be interpreted as referring to the agency. But this is not implied by the poskim, and certainly it is necessary to betroth her another time on behalf of the sender, for these kiddushin are nothing; for to the sender he did not betroth her, and to him she is also not betrothed even when there is no objection regarding the money, such as if he mixed the sender's money with his own money or the sender commanded him to betroth her from his own. Nevertheless, since he said that he spoke in error and he is believed, as has been explained, an error in consecration is not consecration, just as in one who intended to say "terumah" and said "ma'aser" and similar cases. Furthermore, since she says that it is not her will to be betrothed to the agent and the matter proves this—his kiddushin are nothing. However, there is one who says that the agent must swear that he erred and that it was not his intent to betroth her to himself; and it appears to me that this is only in a place where she does not cry out against this and it is also agreeable to her to be betrothed to the agent, but if she cries out and says that she has no desire for him and he did not speak with her on his own behalf, or he spoke and she did not consent, and the fact that she was silent was because she did not understand that he betrothed her to himself, what have we to do with his oath? For she is believed, as has been explained, and even if his intent had been to betroth her to him, what does it avail?

Therefore, that which our teacher, the Beit Yosef, wrote, that there is one who is stringent to require her to receive a get from the agent—this is only when there is no such explicit proof that the agent erred, and also there is no clear proof that she did not consent to the agent, such as if he also spoke with her that perhaps she would desire to be betrothed to himself and she did not say to him explicitly that she had no such desire. These matters depend on the judgment of the beit din in that place to investigate and inquire very well. When the matters prove from every side that he erred in his speech—we do not require her to receive a get for no reason, and the agent betroths her once more on behalf of the sender. But if the matters do not prove so much, then certainly it is difficult to release her without a get from the sender. This is also implied by the source of the law in the Mordechai, chapter 3, see there; and to this the great Acharonim agreed.

And know, that which has been explained, that when he transgressed and betrothed her to himself he is considered a deceiver, or a wicked person according to the Rambam – this is if the woman was willing to be betrothed to the sender, but if she was not willing at all to be betrothed to the sender but rather to the agent, he acted properly by betrothing her and this is not deceit at all; however, if he has time to inform the sender that she is not willing to be betrothed to him, it is proper to inform him, and if he fears that by the time he informs him another will precede him, even this is not necessary [Gemara].

Our sages, of blessed memory, said [Nazir 12a] that one who says to his agent, "Go and betroth for me a woman," without specifying a particular woman, and the agent died and it is not known whether he betrothed a woman for him or not—he is under the legal presumption that he betrothed one, for there is a presumption that an agent performs his mission. Since it is not known which woman he betrothed for him, he is forbidden to any woman who has relatives who are ervah to her, and they are six arayot: her sister, her daughter, her daughter's daughter, her son's daughter, her mother, and her mother's mother. In their detail they are seven arayot, for her sister is counted as two—from the father and from the mother—for he cannot marry this woman who has such arayot, for perhaps his agent betrothed her sister or her daughter or her mother. However, a woman who does not have such relatives—he is permitted to marry her. And they were not concerned for sheniyot because their prohibition is rabbinic. Therefore, if he wishes to betroth a woman who has such relatives, he has no remedy unless these relatives come and say that they were not betrothed to the agent of this man. And some say that their statement is not effective to permit her, and only if they arose and married other men, for then it is clarified that they were unbetrothed and he is permitted to her. The reason for their dispute will be explained before us with the help of Heaven in section 40; see there.

The sages, of blessed memory, further said [ibid.] that even a woman who has such relatives, if these relatives were married at the time he made him an agent, even if afterwards, before the death of the agent, they were widowed or divorced in a manner that he still had time to betroth them, nevertheless he is permitted to this woman and we do not fear that the agent betrothed one of her relatives. They said regarding the reasoning for the matter that since at that time when he made him an agent they were married, when one appoints an agent, it is for a matter that stands before him; for a matter that does not stand before him, he does not appoint an agent. There is a version in the Gemara: he cannot appoint an agent. Therefore, our teachers the Rishonim wrote that anything a person cannot do himself, he cannot appoint an agent to do. He cannot appoint an agent to betroth this woman after she is divorced, since it is not in his power to betroth her now, he cannot now appoint an agent for this; and if the agent betroths her for him, it is nothing, for the agency did not take effect, and he must appoint the agent when she is widowed or divorced, when he himself would have the power to betroth her. And some say that certainly by law he can do so, but it is not the way of a person to appoint an agent for a matter he cannot do now and we do not fear for this, but if he appointed him an agent for this—his agency stands. We have already explained this dispute in Choshen Mishpat siman 182, see there, and it depends on the variation of the versions in the Gemara as I wrote.

Regarding the reason for this prohibition that our sages, of blessed memory, prohibited to him all women, there are some of our teachers who hold that this is nothing other than a penalty because he commanded him to betroth for him a woman without specification and did not specify to him a certain woman, for he should not have entered himself into a doubt of a prohibition and a concern of a mishap. For by the law there is no prohibition here, as there is no complete presumption that an agent performs his agency, since it does not depend on him and perhaps a woman would not consent to be betrothed to him on behalf of his sender. Furthermore, how can we prohibit to him all women, for we must follow the majority, and the majority of women in the world are not among the relatives of the woman who was betrothed to the agent. And one cannot say regarding this that "anything fixed is considered as half and half," for from the Torah the law of "fixed" only applies when the prohibited item is recognizable by itself and the permitted item by itself, like the nine shops as has been explained in Yoreh Deah siman 110. And you should know that it is so, that this is only a mere penalty, for if it were not so, all minor girls whose fathers are in distant places would be prohibited forever, for we would be concerned that perhaps their father received betrothal on their behalf through an agent. Rather, it is certainly nothing other than a penalty, and they penalized him, but they did not penalize others [Tosafot].

But there are some of our teachers who hold that it is a complete law, that all minor girls, even if their father died, are permitted because they are in the status of being unmarried, and the presumption that an agent performs his mission does not remove them from their status. Furthermore, there is a presumption regarding a father that when he betroths his daughter, he informs her and many people, and he would not remain silent such that she would be ruined. However, regarding this man who comes to betroth an unmarried woman and we fear lest the agent betrothed one of her relatives, even though each of the relatives has a status of being unmarried, their status does not avail for this woman who wishes to be betrothed. For the relatives are not before us that we should say their status avails. And in truth, if the relatives came and said "we were not betrothed," they are certainly permitted because of the status of being unmarried to be betrothed to others, and since they are believed regarding themselves, they are also believed regarding this woman [Ran chapter 6 of Gittin in the name of the Ramban]. And the presumption that an agent performs his mission is a complete presumption, for most women want to be betrothed, and more than a man wants to marry, a woman wants to be married. And also a complete law of "kavuah" may be said regarding this, for the prohibition is recognizable by itself—namely, known married women—and the permission by itself—namely, all unmarried women regarding themselves because of their status of being unmarried, and we are in doubt regarding the relatives of this woman whether they are from the unmarried women or from the married women [it appears to me; and see the Ran there who challenged him: how is one witness believed? And it may be said that regarding themselves they are believed because of their status, and automatically she is permitted because the prohibition is removed; and delve into this].

And there is a practical halachic difference between these two opinions: For according to the legal reason—she is permitted when the relatives say they were not betrothed, but according to the reason of a penalty—it is of no avail, for behold, according to the law she is permitted even without their statement, and what would their statement add? Therefore, it is of no avail unless they went and betrothed themselves, for they would not perform a prohibited act, and then of necessity it is impossible for us to forbid this woman to him; and this is the reason for the two opinions that we wrote in siman 36. And there is a further practical difference: For if he did not pay heed and betrothed a woman, according to the reason of a penalty—it is a complete betrothal since according to the law she is permitted, but according to the legal reason—it is a doubtful betrothal, for perhaps he betrothed her sister or another forbidden relative and his betrothal does not take effect with her, until it is clarified with absolute clarity that all her relatives are unmarried, and then the betrothal is a complete betrothal [see Beit Shmuel, subsection 30].

Our teacher, the Rema, wrote in section 11: There are those who say that the same law applies if he commanded to betroth a specific woman and the agent died—he is immediately forbidden to her relatives based on the principle that there is a presumption that an agent performs his mission; and there are those who disagree on this. Thus far his words. And the reason for the dispute: according to the reason of a penalty, if so, when he commanded him to betroth a specific woman where a penalty is not applicable as it is when he commanded him generally, then he should not be forbidden to her relatives; but according to the reason of the law, just as in a general case he is forbidden to all women, so too in an explicit case he is forbidden to her relatives. However, all the great later authorities disagree with him, for certainly even according to the reason of a penalty, in this case it is an absolute law, and only in a general case where we forbid him to the whole world is it only a penalty; but when he specified "a certain woman," it is obvious that we say there is a presumption that an agent performs his mission and he is forbidden to her relatives. And even if we say that we do not say there is a presumption that an agent performs his mission for a leniency, nevertheless, for a stringency we certainly say it, and consequently her relatives are forbidden by law due to the doubt [Chelkat Mechokek and Beit Shmuel and the Gra].

And it appears to me like the words of our teacher, the Rema, that according to the law one need not be concerned at all, even according to the one who holds that we say the chazaka that an agent performs his mission even for a leniency, for here it is not within his power at all; and even if generally there is reason for concern because there are many women who desire to be married, yet when specifying a particular woman, who is to say that she consented to be betrothed to him? And granted that nevertheless, according to rabbinic law there is reason for concern lest she consented, nonetheless it is obvious that if this woman desires to marry another, we do not have the power to forbid her because of the agency of this man, for she has a chazaka of being unmarried and she stands and cries out that she was not betrothed to the agent of this man. And according to this, if we say that the chazaka of this woman also avails for her relatives, it is obvious that there is no prohibition upon him to betroth the relatives for the reasons that have been explained; except that according to the one who holds regarding an unspecified woman that by strict law he is forbidden to all women, it has been explained that he holds that the chazaka of this woman does not avail for another, and if so, they should be forbidden at least by rabbinic law. But the one who holds it is a penalty does not hold this reasoning, and if so, they are permitted—whether because of the reason of chazaka or because the chazaka that he performs his mission does not apply in this case as I have written, and a penalty does not apply in this case since he specified the woman for him, and our teacher, the Rema, spoke well. And nonetheless, in practice one should be stringent according to all opinions until the matter is clarified.

If one appointed a messenger and canceled the mission before the kiddushin—it is canceled; but after the kiddushin—the cancellation is not effective even within the interval of a speech of the kiddushin, as with a get in siman 141, for regarding gittin and kiddushin we maintain that within the interval of a speech is like after the interval of a speech, as was written in siman 38 and siman 49, and this is the opinion of most of the poskim. However, according to the one who holds that this is only as a stringency, as was written there, certainly one must be concerned for the stringency that if she received kiddushin from another, she requires a get from him; and if it is not known whether he canceled before the kiddushin or after the kiddushin—she is in a state of doubtful kiddushin.

This nullification is specifically by mouth and before two witnesses and that he nullifies it explicitly, but a disclosure of intent is not effective, for we hold that a disclosure of intent in a get is of no consequence, and likewise in kiddushin. And perhaps here a disclosure of intent is effective for stringency since it is still prior to the kiddushin, it is like in monetary laws where a disclosure of intent is effective in several matters, but matters of the heart are certainly nothing. And initially, he should nullify it before the agent himself, for so the sages ordained regarding a get as written there, so that the matter should not lead to ruin, and they prohibited nullifying it not in the presence of the agent; nevertheless, ex post facto if he nullified it—it is nullified even not in his presence. And perhaps you will ask, what concern is there in kiddushin when he nullifies it not in his presence? Granted, in gittin there is a concern that she will not know of the nullification and will marry another, but in kiddushin what concern is there when she believes she is betrothed? However, here too there is a concern, for when she believes she is betrothed, if she receives kiddushin from another she will not be concerned for the kiddushin and in truth she is unattached; and furthermore, since she believes she is betrothed, she will remain an agunah and sit and not marry another, and "it is better to sit as two," or that the kiddushin will reach her hand before they were nullified and she believes they were already nullified and will marry another. And the Rambam and the Tur did not write this law at all, for in truth these are concerns that are not common as is understood, and also in the Gemara this was not mentioned regarding kiddushin; however, from the Yerushalmi at the beginning of the fourth chapter of Gittin it is implied so, and so our teachers the authors of the Shulchan Aruch ruled, and so we hold. [And even though according to our Talmud, Gittin 33a, according to Rabbi Yochanan and according to Rav Nachman whom we hold like them, and according to the reason explained there it is not applicable to kiddushin, nevertheless according to the reasons of the Yerushalmi there is cause for concern, and look closely].

One who appoints a messenger to betroth a specific woman for him, and the messenger went and betrothed her to him, and the sender himself betrothed one of her relatives who are forbidden to this one as an ervah, such as her mother, her daughter, or her sister, and it is not known which of them was betrothed first—both require a get and are forbidden to him. However, if it is known who betrothed first—that one is betrothed to him and the second does not require a get, for betrothal does not take effect with an ervah. And even if the messenger betrothed first, we do not say that behold we see that the sender does not desire his mission since he immediately betrothed her relative, and certainly he nullified the mission in his heart; for behold we have already explained that a disclosure of intent is of no consequence. And if in truth he nullified it explicitly and we knew that the nullification was prior to the betrothal of the messenger—it has already been explained that the betrothal of the messenger is void, and automatically his betrothal that he betrothed himself is a certain betrothal. And if it is not known whether the nullification was prior to the betrothal or not—it returns to being a case of doubt, and both require a get and are forbidden to him.

The Rambam, of blessed memory, wrote in chapter 9, law 18: One who appoints an agent to betroth a woman for him, and he went and betrothed her, the agent says, "I betrothed her for myself," and the woman says, "I was betrothed to the first one who sent him," if the agent did not act before witnesses, the agent is prohibited to her relatives and she is permitted to his relatives, and the woman is prohibited to the relatives of the sender and the sender is permitted to her relatives; and if the agent was established by witnesses, she is betrothed to the first one. If she said, "I do not know to whom I was betrothed, whether to the sender or to his agent," if the agent was not established by witnesses, she is betrothed to the second; and if it was established that he was his agent, both of them give a get, and if they wish, one gives a get and one marries her. Thus far his words. And his source is from the Yerushalmi, chapter 3 of Kiddushin, and he treated this law like one who says to a woman, "I betrothed you," and she says, "You did not betroth me," where he is prohibited to her relatives and she is permitted to his relatives, as written in siman 48, for anyone who admits to the kiddushin has made upon himself a "forbidden piece" regarding the relatives from the forbidden unions for whom kiddushin does not take effect. And all this is when the witnesses of the kiddushin are not before us or they do not remember how it was, and the details of the laws regarding the giving of a get will be explained there with the help of Heaven.

One should not wonder why, in a case where he did not appoint him in the presence of witnesses, the sender is permitted to marry her relatives, even though he says he appointed him as a messenger and she says she was betrothed to him [Tur]? For it can be said that there is no reason to forbid the sender from her relatives, for the essence of his prohibition is due to the agency, and the messenger stands and cries out that he annulled the agency and betrothed her to himself; and the messenger has the power to permit her relatives to the sender, while she does not have the power to forbid him. It is no greater than a typical woman who says to Reuven, "you betrothed me," and Reuven denies it; and here too, the messenger, who stands in the place of Reuven, denies it. Nevertheless, there are some of our teachers who disagree on this and hold that he is also forbidden from her relatives [ibid. in the name of the Rosh].

And so too regarding what he ruled, that if the agent was established by witnesses, she is betrothed to the first, even though the agent stands and screams, "Even though he made me an agent with witnesses, I retracted my agency and betrothed her for myself" [ibid.], how can we permit her to the sender? However, when we scrutinize his words, he did not say "if he made him an agent with witnesses" as he said in the first clause "if he did not make him an agent with witnesses," but rather that in truth there is no difference between whether he made him an agent with witnesses or without witnesses, and "established" is a different matter. This is, for example, where he brought witnesses with him or a certified document that this agent was made with witnesses. Since the agent himself took the trouble before the kiddushin to bring proof that he is the agent of so-and-so, he is not believed to say that at this moment his mind changed. Since she claims with certainty that she was betrothed to the sender, we believe her, and the words of the agent are nothing, and he is like one who claims against that which is established for us and against the chazakah. Nevertheless, it is certain that the agent is forbidden to her relatives [the Maggid Mishneh], for he has made it a forbidden matter upon himself, and it is possible that we even compel him to give a get, as written in siman 48. And there are some of our teachers who disagree even in this and hold that there is no difference between "established" and "not established," and even in a case of "established," she does not remain betrothed to the first through these kiddushin; rather, we compel the agent to give a get and we also compel him to betroth her once more on behalf of the sender [see Beit Shmuel, subsection 37; and it appears to me that the intention of the Rema is as I have written, and with this we have removed all doubt, and delve into it].

And regarding that which he ruled in the case of one who says, "I do not know to whom I was betrothed," that if it was not established by witnesses, she is betrothed to the second, and if it was established by witnesses, both give a get—the reason is simple: for when his agency was not established, and he claims certainty while she claims uncertainty, he is believed, as there is nothing here that would cause us not to believe him. However, where it was established by witnesses, the establishment is like a contradiction to him; therefore, both give a get, for the matter is balanced, as he claims certainty and his agency was established. And there is no one who disagrees with him on this law.

If after the agent said "I have betrothed her for myself," he retracted and said "I thought that I betrothed her for myself but I remembered that I betrothed her for my sender," if it was established by witnesses—then we say the presumption is that an agent performs his agency, and he is believed to retract and say that he erred, and the agent is permitted to her relatives and she is betrothed with certain betrothal to the first, but without being established by witnesses—it is possible in truth that he withdrew from his agency as he said previously and he is not believed now to retract, and he remains with the prohibition regarding her relatives and the first requires other betrothal. And when she said "I do not know" and the agent retracted, where it was established by witnesses it appears that it is no worse than where she contradicted him previously, but without being established the law is not as before where we ruled that she is betrothed to the second, but rather certainly in this he is believed to retract and she is not betrothed to him and she requires a get from him and also from the first, or that the first shall betroth her anew.

Some say that an agent who betrothed without specification—meaning that he came to the woman and said to her, "So-and-so made me an agent to betroth you," and after a while he betrothed her without specification, and the agent says, "I intended for myself," and she says, "I intended for the sender"—if the agency was not public, the sender is permitted to her relatives as the agent says, for we believe him that he intended for himself; and the agent is forbidden to her relatives, and she is permitted to the relatives of the agent. But when it was established by witnesses, the sender is also forbidden to her relatives, for the protest of the agent is not a protest regarding him to nullify the agency [the Ra'avad there]. And it is possible that for the law, even the Rambam agrees with this ruling, and it requires further study. [And the Ra'avad explains the Yerushalmi thus, and it requires further study regarding the Shulchan Aruch, who did not bring it at all].

If the agent says, "I betrothed her to the sender," and she says, "You did not betroth me"—the sender is forbidden to her relatives based on the word of the agent even if it was not established by witnesses, for since he says that he fulfilled his agency and there is a presumption that an agent fulfills his agency, it is like one who says to a woman, "I betrothed you," and she says, "You did not betroth me." And know, that both the sender and the agent can cancel the agency with their speech; even if they performed a kinyan, they can cancel the agency [Beit Yosef]. And if they swore not to cancel the agency and they transgressed and cancelled—their cancellation is a cancellation and they have transgressed the oath [see Tosafot Temurah 6a, s.v. "Ve-hashta"]. However, they are not believed to say that they cancelled as long as we do not know clearly that they cancelled, for a person does not make himself out to be wicked; and in the laws of gittin it will be further explained with the help of Heaven.

It has already been explained in section 58 that an agent who deviated from his agency, the agency is void. There are those who are uncertain if he betrothed her with rabbinic kiddushin or a doubtful kiddushin whether this constitutes a deviation in the agency, for certainly the intent of the sender was to betroth her with absolute kiddushin; and likewise if he betrothed her with kiddushin that are not fit for intercourse [Mishneh LaMelech chapter 7, halacha 20]. In siman 31, section 38, we wrote that there is a dispute regarding this and in practice it is a doubt, see there. And even though from the perspective of logic it would appear that this is certainly a deviation in the agency [ibid.], nevertheless, one could also say the opposite: that certainly if he deviated in some action it is a deviation, but when he did not deviate in action but rather according to the law it is as a deviation, this is not like a deviation in agency, for he did not command him how to act according to the law; rather, this is like a disclosure of intent where we are witnesses that certainly he only desired clear kiddushin, and we hold that a disclosure of intent in a get is of no consequence, and likewise in kiddushin. Therefore, in practice it is a legal doubt and it is a doubtful kiddushin [and even though the proof of the Mishneh LaMelech from page 52a from Rav Tavyomi can be rejected by saying that he indeed appointed him to betroth one of the daughters to him, similar to the case of the sisters in the Mishnah there, and likewise the proof of the glossator from page 64b can be rejected, see there, nevertheless, one can say so from the perspective of logic as I have written, and examine this carefully].