Siman 42

The Rambam, of blessed memory, wrote at the beginning of chapter 4: A woman is only betrothed with her consent, and one who betroths a woman against her will—she is not betrothed; but a man whom they coerced until he betrothed against his will—behold, she is betrothed. Thus far his words. And the reason for these matters is that even though it is a simple matter that betrothal must be with consent, both from the man, as it is written, "When a man takes a wife," and also from the side of the woman we require her knowledge, for we require the knowledge of the transferor [Rashi 44a] and she is the one transferring herself to him, and so it is written, "and she departs and becomes another man's"—implying with her knowledge [Rashi Yevamot 19b]; nevertheless, just as in buying and selling, which must be with the consent of the seller and the buyer, and yet we hold that if they coerced a man to sell his field and he received the payment for the field himself or said "I desire it," the sale is valid as written in Choshen Mishpat siman 205, unless he submitted a moda'ah, and without this we say that due to his coercion he resolved and transferred since he received money—so too this woman, who is like one selling herself to him, if they coerced her to be betrothed to this man and she received the money of the betrothal herself or another type of betrothal when she said "I desire it," we say that due to her coercion she resolved and transferred herself, and this is called consent even though it was through coercion. And even though the reason for a sale was explained there that he therefore resolves and transfers because he received money, and if so, in betrothal by deed or intercourse she receives nothing and it should be like a gift which is not acquired as written there, and also in betrothal by money, it would be well when he betrothed her with much money, but if he betrothed her with a perutah, it is not relevant to say that because of the money she transferred herself to him; however, the truth is that in betrothal it is like receiving money, for he obligates himself in her food, her clothing, and her conjugal rights [Tosafot Bava Batra 48b], and furthermore, a woman is satisfied with anything, for it is better to sit as two than to sit alone [Nimukei Yosef ibid.], and therefore it is like a sale. And so too if they coerced him to buy a field, the Rambam holds that the purchase is valid when he said "I desire it," and it is an a fortiori argument from the sale of a field, for it is better for a person to buy than to sell [the Gra]. And so too when they coerced him to betroth, it is like the purchase of a field, and since he said to her "Behold, you are betrothed to me," this is like saying "I desire it" [Maggid Mishneh] and his betrothal is a betrothal by law. And this is similar to the acquisition of a field where he benefits from the produce, and here too he benefits from her, for she is beholden to his work and he establishes offspring from her; and even though he becomes obligated for her sustenance, nevertheless her benefit is greater than her expense, for even on a field there is expense.

And this is according to the law, but the sages enacted that when one coerces a woman to accept kiddushin, the rabbis annulled the kiddushin from him since he acted improperly, but when they coerced him to betroth and she acted improperly, the Rambam holds that the rabbis did not annul the kiddushin, for they did not find it necessary to do so, as he can divorce her against her will, and if he does not desire her, let him divorce her; but she, who does not have the ability to be divorced against his will, the Sages, of blessed memory, were forced to annul the kiddushin. And even in this time, when there is the enactment of Rabbeinu Gershom Me'or HaGolah not to divorce against her will, and if so, we should have nullified the kiddushin even if they coerced him, yet in such a case Rabbeinu Gershom Me'or HaGolah did not enact, and he may divorce her according to Torah law.

And this is the opinion of the Rambam and those who stand by his approach, but several of our teachers hold that when they coerced a man to betroth a woman, she is not betrothed according to the law, for they hold even regarding the acquisition of a field that only when they coerced him to sell is his sale a sale, but if they coerced him to buy a field, his acquisition is not an acquisition, as our teacher, the Rema, wrote in Choshen Mishpat there. And even though it is certainly preferable to buy than to sell, nevertheless, buying is always from will, but sales of fields are for the most part under duress, for if he did not need money he would not have sold, and therefore even when they coerced him to sell, his sale is a sale [Bava Batra 47b]. And although his own duress is not similar to duress from others, nevertheless, through the duress he resolves and transfers ownership upon receiving the money. But regarding a buyer, we do not find the matter of compulsion at all, and therefore even when they coerced him to betroth, which is similar to an acquisition, she is also not betrothed according to the law, and this is even worse than the acquisition of a field, to take a woman who is against his will. And since there is a dispute of the poskim in this, if they coerced a man to betroth a woman, it is a safek kiddushin. And know that even monetary duress is called duress [Makneh] even if they did not coerce him with physical suffering. And it is only called duress when they coerced him regarding the betrothal itself, but when they coerced him regarding another matter and out of the other duress he consented to betroth—this is not duress at all and this is complete will, as is written there in section 7, and see further in siman 134. And if he submitted a moda'ah—his moda'ah is a moda'ah [it appears to me].

Let this matter that we have said not be a wonder in your eyes—that according to the law, one who betrothes a woman through coercion and she accepted the kiddushin, she is betrothed—for this matter is explicit in the verse at the end of the book of Judges. For after the war with the tribe of Benjamin, when they had killed the majority of the tribe and they trembled lest the tribe be cut off, and previously they had sworn not to give of their daughters to them for wives, it is written that they commanded the children of Benjamin: "Go and lie in wait in the vineyards; and see, and, behold, if the daughters of Shiloh come out to dance in the dances, then come ye out of the vineyards, and catch you every man his wife of the daughters of Shiloh, and go to the land of Benjamin etc., and the children of Benjamin did so, and took them wives, according to their number, of them that danced, whom they carried off" etc. (Judges 21:20–23). And this matter was done according to the beit din hagadol and the totality of Israel. And behold, they coerced the women, for they seized them from the vineyards; rather, it is certainly because they afterwards accepted the kiddushin, even though it was through coercion, their kiddushin are complete kiddushin [that which the Avnei Miluim questioned against those who disagree, where would you find it in a case of coercion that he should "drink from his own vessel," and wrote that the commandment to listen to the words of the sages is only a rejection, he did not remember the words of the Rambam at the end of the second chapter of Laws of Divorce, see there].

One who betroths a woman at a time when he was "slumbering but not slumbering, awake but not awake"—his kiddushin are kiddushin [Beit Yosef], for he is not comparable to one who is asleep and is like one of sound mind. The measure of this is when he is dozing slightly, and when they call him he answers; and even though he does not know how to respond then to a matter that depends on reasoning, nevertheless when they remind him, he remembers and says yes or no [Pesachim 120b]. But in less than this measure, such as when he has fallen asleep, he is like one who is sleeping [ibid.]. And there is no difference between the beginning of sleep and the end of sleep [Tosafot Niddah 63a], for when he is at this level of "slumbering but not slumbering, awake but not awake," he is like one who is fully awake. And for all mitzvot it is so, that he fulfills his obligation with the reading of the Megillah and with the eating of the Pesach offering when he is at this level, and also regarding his yevamah, he acquires her in such a case [Yevamot 54a; and see Tosafot Taanit 12b, and nevertheless regarding the law, it appears to me that they do not disagree with Tosafot in Niddah, see there and examine closely] [see Taz Orach Chaim siman 690, subsection 8].

Our teacher, the Rema, wrote in section 1: If she first said "betroth me" and he threw the kiddushin into her lap and said to her "behold you are betrothed to me," and she shook her clothes within the time of a speech-utterance to cast the kiddushin from her and says that she only intended from the beginning to act in jest—nevertheless she is betrothed, and we do not follow, in the matter of kiddushin, proven assessments that prove she did not intend for the sake of kiddushin. Thus far his words. And even though in siman 30, section 20, it is explained that if she threw it within the time of a speech-utterance it is nothing, and even where they had previously arranged the marriage as written there, nevertheless here, where she first said "betroth me," we concern ourselves that she truly consented when he threw it into her lap and immediately within the time of a speech-utterance she retracted, and in kiddushin a retraction is not effective even within the time of a speech-utterance, as written in siman 38, section 51. And from the wording of our teacher, the Rema, it implies that it is certain kiddushin, and even though we explained there that there are those among the poskim who hold that within the time of a speech-utterance is only a stringency in kiddushin, and if so, according to this, it would only be a doubt of kiddushin, however our teachers the authors of the Shulchan Aruch there in section 34 appear to hold that according to the essential law it is so, as written there. And even though she did not say "betroth me" at the moment of the throwing of the kiddushin, nevertheless, since she did not say explicitly "give the kiddushin into my hand" but rather "betroth me" without specification—she is betrothed even by throwing [Beit Shmuel].

However, it is impossible to say that his intention is to certain kiddushin, for even without this, since she says she intended only as a joke, even though we do not follow assessments and proofs regarding kiddushin, nevertheless this is only due to the stringency of kiddushin [the Gra, subsection 4]. And if so, according to this, even without the reason of retracting within the time of a greeting, this is only a case of doubtful kiddushin. And even though according to the core of the law, matters of the heart are not matters, nevertheless where the matter is proven that she intended only as a joke, they are matters, for in several matters we follow an assessment where the assessment is certain, as is written in Choshen Mishpat siman 246. And regarding kiddushin, even with a certain assessment and we are witnesses that she intended only as a joke, nevertheless we do not follow the assessment. And so it is explained in the source of the law [Teshuvot Maimoniyot, Ishut, 61]. Therefore, our teacher, the Rema, did not state the reason that matters of the heart are not matters, but rather the reason that we do not follow assessments regarding kiddushin, which implies explicitly that only regarding kiddushin we do not follow them. For if it were because of the reason that matters of the heart [are not matters], is it not established for us in all matters that matters of the heart are not matters? Rather, certainly even in a place where in other matters we follow the assessment, in kiddushin we do not follow it. And this is certainly only because of the stringency of a married woman as I have written, and if so, it is only a case of doubtful kiddushin [and the words of the Noda BiYehuda, siman 59, require great study, as he only cited the beginning of the words of Teshuvot Maimoniyot, and afterwards it is explained explicitly there in Teshuvot Maimoniyot as I have written, see there].

Nevertheless, it would appear in my humble opinion, since our teacher, the Rema, did not write that it is a case of uncertain kiddushin or that we are concerned for the kiddushin, but rather simply wrote "she is betrothed," it implies that even in such a case where there is a proven assessment, it is also certain kiddushin. And this phrasing that he wrote, that we do not follow assessments and proofs in kiddushin, is not only due to a stringency, for he also wrote this phrasing regarding a leniency in section 4, see there; rather, according to the essential law, it is so in matters of gittin and kiddushin, that we do not follow an assessment in them even in a very proven assessment, whether for leniency or for stringency. For in matters of gittin and kiddushin, we follow only the revealed act and not the thoughts, even if we knew clearly that the thought is the opposite of the act.

And proof for this is that in the Gemara there is a dispute whether a disclosure of intent in gitin is significant or not, and we maintain that it is not significant [Gittin 34a], as written at the end of siman 141. And even the one who maintains that it is significant also admits that matters of the heart are not matters in gitin and kiddushin [ibid. 32a, in Tosafot s.v. "man de-amar"], rather he maintains that in a case where his intent was disclosed to everyone before she received the get that his intention was not for a complete get, it is significant and she is not divorced [ibid.]. And we maintain that even in such a case it is not significant and she is completely divorced and permitted to marry, and you have no clearer presumed intent than this. And the incident brought by the Shas there regarding one who gave a get and canceled the get twice and they compelled him to give a third time and commanded the witnesses to plug their ears until after the giving so they would not hear when he ran after them and canceled the get, see there. And behold, you have no clearer presumed intent than this, and nevertheless we do not follow this even for leniency, and gitin and kiddushin have the same law. And further proof is from the get of a shekhiv mera who gives it to her so she will not be bound to a yavam and not because of hatred, and according to our custom that we do not give with a condition but rather a plain get and they enter into an engagement as written in siman 145, see there. And when he recovers from his illness and does not want to betroth her or she does not agree to be betrothed to him, would we disqualify the get? And behold, you have no clearer presumed intent than this, that he only divorced her out of fear of death, nevertheless we do not pay heed to this because according to the action it is a complete get [and the get in the days of Maharal is well known, which the Maharsha and all the greats of the generation validated, as written by the Bach in siman 148, and behold the presumed intent there was well known].

And the reason for the matter appears to me to be because gittin and kiddushin are not similar to monetary laws, where matters are established between themselves and witnesses were only created for liars; rather, in gittin and kiddushin, even if the act was done properly, without witnesses there is no substance to the act. And since the matter depends only on witnesses, they must only see the act as it is and not search after thoughts in the heart even with a proven assessment, for if we follow the assessment, we would be following the parties themselves and not the vision of the witnesses, and it is impossible for it to be so in gittin and kiddushin.

And for this reason, it appears to me regarding what several of the Rishonim troubled themselves with: how a woman can be betrothed or divorced upon a condition, such as "if you do this" or "if I do that," for we maintain that every "if" is an asmachta, and an asmachta does not effect acquisition, as our teacher, the Beit Yosef, wrote in his great work in Choshen Mishpat siman 207. And there are those who said that the entire law of asmachta—that it does not effect acquisition—is only when it is by way of a penalty and not when it is by way of a condition, as we wrote there in section 24. And some say the reason is that since it is a matter that a person is particular about, were it not that he fully resolved to betroth or fully resolved to divorce, he would not have said them [there in the Beit Yosef in the paragraph beginning "And it is to be scrutinized"]. And some say that whenever one stipulates of his own volition, there is no asmachta [ibid.]. And all these matters do not align according to the principles and laws that we maintain regarding the laws of asmachta. But according to our words, the matter is simple: for the essence of the law of asmachta is because of "matters of the heart," for we are witnesses that he did not resolve in his heart with a complete heart, but rather he thought that this matter would turn out according to the thought in his heart, and he did not resolve and transfer ownership, as the Rambam wrote in the eleventh chapter of Mechira and the Tur there in section 16. And all this is only relevant to monetary laws, which depend on the agreement of his heart, and when there is a great assessment that he did not resolve in his heart, it is not an acquisition. However, regarding gittin and kiddushin, which depend on the perception of the witnesses, we do not follow the thought of his heart even with a proven assessment, and consequently, the law of asmachta is not relevant to them at all.

However, this matter requires great deliberation, for certainly if the witnesses do not perceive according to their actions that the get and the kiddushin are not in the way of truth, even if we knew clearly through a proven assessment that they did not intend the truth in their hearts, we do not have to concern ourselves with matters of the heart. But if according to their actions it appears explicitly to the witnesses that it is nothing but a way of jest and mockery, certainly it is impossible to make them definite kiddushin, and even regarding doubtful kiddushin one must deliberate much on this. Therefore, our teacher, the Rema, did not write that she said initially in a way of jest and mockery "betroth me," for in this way it is obvious that they are not definite kiddushin, and it is possible that it is not even doubtful kiddushin; rather, she said "betroth me" without specification, such that according to the observation of the witnesses in her speaking, it was not in a way of jest and mockery. Therefore, they are kiddushin even though she said she only intended it for jest and there are assessments and proofs for this; nevertheless, they are kiddushin [and in the Tosafot in Gittin ibid. they compared it to monetary laws, see there; and it is possible that this is only according to Rava who holds that a revelation of intent is a significant matter, for all their words there are according to Rava and not Abaye, and this requires further study, see there].

And behold, even though it appears so to us from the sugyot of the Shas and the wording of our teacher, the Rema, nevertheless, since this is not found explicitly in the words of the poskim and there are those where it appears somewhat even to the contrary—for those poskim who searched for other reasons regarding asmakhta, as I have written, if they held of our reasoning the reason would be simple—and even though there is no absolute proof from this, nevertheless one should not act to be lenient based on this reasoning. Also, regarding the ruling of our teacher, the Rema, one should be stringent in practice and say that it is a case of doubtful kiddushin. And it seems to me that there is a dispute among the poskim regarding this reasoning that we have written [see Beit Shmuel subsection 12, it implies that the Rashba holds like our reasoning, and the Mordechai disagrees with this, see there and examine closely].

Our teacher, the Rema, further wrote [ibid.]: If he took the woman's hand by force against her will and betrothed her, and she did not throw away the kiddushin—she is betrothed, even though it was initially by coercion and he gave it to her without specification and said nothing to her, since he had initially spoken with her regarding kiddushin. Thus far his words. And we have already explained this in siman 30, section 18, that even though many poskim hold that when he throws the kiddushin into her lap and she had not previously consented, we do not concern ourselves with the kiddushin even if she did not throw them away immediately, nevertheless here it is kiddushin; since he had initially spoken with her regarding the business of kiddushin, even though he betrothed her by force, nevertheless since she did not throw it away, perhaps she was pleased afterward and we concern ourselves with the kiddushin. Furthermore, her lap is not comparable to her hand, as was written there.

However, according to this, it would only be a case of uncertain kiddushin, yet from the wording of our teacher, the Rema, it implies that they are certain kiddushin [and so it appears in the Beit Shmuel, subsection 3]. And it is possible to say that his intention was not total duress, but rather that they spoke about the matters of kiddushin and she did not refuse the essence of the kiddushin, but rather that she did not yet want to receive the kiddushin, and he took her hand by force and thrust the kiddushin into it. Consequently, if she did not desire it, when he removed his hand from her hand, why did she hold onto the kiddushin? And it is not similar to one who threw it into her lap, for when he thrust it into her hand by force and removed his hand, if she did not hold it herself in her hand, the money would have naturally fallen from her hand. Rather, it is certain that she consented, and if so, it is certain kiddushin. And that which he wrote, "and he said nothing to her," is because since he spoke with her about the matters of kiddushin, even if he did not say to her "behold you are consecrated to me"—she is consecrated, as I wrote in siman 27 [and even though in the Hagahot Mordechai at the end of Gittin, which is the source of the Rema, it is explicitly stated there only that she requires a get, nevertheless his words can be interpreted thus; and in any case, regarding the halacha, one should be stringent].

He further wrote: If he owed her money and she said to him, "Give me my money," and when he began to give it he said to her, "Behold, you are betrothed to me," and she threw the money from her hand—she is not betrothed. Thus far his words. And there is no novelty in this at all, for if she threw it, even without him owing her, she is also not betrothed, as was written in siman 30; and regarding a debt, even if she did not throw it, she is not betrothed, as was written in siman 28. And there is one who says that had she not thrown it, even regarding a debt, here it would be a betrothal because he did not say to her, "Here is the money that I owe you," and as was written there [Beit Shmuel, subsection 4], and this is the novelty that our teacher, the Rema, informs us; but I do not know, for since she said "Give me my money," it is as if he said it, for she explicitly said that she is receiving it for the debt, and furthermore, what relevance does this have to this siman. And some say that the novelty is even though she was standing in her own domain, and when she threw the money from her hand it was still in her domain [Bach]. And some say that the novelty is that we are not concerned for the rumor that went out that she was betrothed, for this is not a rumor since the witnesses saw that she threw it immediately [Derisha and Perisha]. And all these matters are not relevant to this siman but rather to siman 30 and siman 46, and also this is not such a novelty.

And it appears to me that our teacher, the Rema, refers to what was stated above regarding where she said "betroth me" or they spoke initially about matters of kiddushin, where it was explained that if he threw her the kiddushin, even if she immediately threw them away, nevertheless it is kiddushin because she consented initially, as was written in section 6; and similarly it was explained in such a case where he gave it to her against her will and she did not cast it away that it is kiddushin, as was written in section 14. To this he says that in such a case where they spoke initially about matters of kiddushin and he owed her money and she said to him "give me my money" and he began to give it to her and she received it and threw it from her hand, there is no concern of kiddushin here. And it is not similar to what was stated above, for there we are concerned with the initial reception which was with consent and she immediately recanted, but here, even her beginning was for the sake of the debt, and therefore we are not concerned even though she initially said "betroth me" or they spoke about matters of kiddushin. And it is not only necessary to say if he gave her the entire debt at once and said to her "behold you are betrothed to me" that there is no room for concern in this, for she requested from him what was due to her and he gave her everything due; and it is possible that in such a case even if she did not throw it we are not concerned, and only in practice is it difficult to be lenient in this. Rather, even if he initially gave her a small amount and I would have said that she did not consider this giving to be for the debt but rather for the kiddushin to which she previously consented and immediately recanted and threw them, and at least let it be a case of doubtful kiddushin and we should compare it to the previous law—he comes to teach us that even in such a case there is no concern of kiddushin [and see Chelkat Mechokek subsection 3 and Beit Shmuel subsection 4, and what appears to me I have written].

One who betrothes without witnesses – we do not concern ourselves with his betrothal, even if he betrothed her with one witness and even if there is no denial between them, for thus the tradition has come down: there is no matter regarding affairs of ervah with fewer than two, as it is written in the passage of gitin and kiddushin, "because he found in her a matter of ervah," and it is written, "by the word of two witnesses... shall a matter be established." Just as there it is two, so too here it is two. And even though regarding matters of mamon when both of them admit there is no need for witnesses, mamon is different, for it is within a person's power to do with his mamon whatever he desires. Furthermore, in mamon itself, if the matter affects some debt to others, he is not believed without witnesses. And in kiddushin, it surely always affects others, for he becomes forbidden to her relatives and she becomes forbidden to his relatives [Rashi 65b]. Furthermore, she becomes forbidden to the entire world, and if another comes and betrothes her, his kiddushin will not take effect [Rashba]. And even though this is not in the category of "harming others" since others have nothing over this woman [ibid.], nevertheless, if we were to say there is kiddushin without witnesses, it would result from this that one would become liable for death without witnesses. How so? Reuven who betrothed Leah without witnesses, and after an hour Shimon comes upon her; if we say that Reuven and Leah are believed and her kiddushin is kiddushin, you would need to execute Shimon who came upon a married woman, and this thing is impossible. Perforce, you require witnesses of kiddushin in order to execute Shimon who came upon a married woman who until this hour was in the presumptive status of an unmarried woman. Consequently, it is impossible to say that there should be any power to kiddushin without witnesses, for there is no "halfway" kiddushin such that we would say that to execute Shimon they are not kiddushin but that she should be like his wife they are kiddushin [see Pnei Yehoshua ibid.]. Therefore, it is a clear halakhah in our hands that kiddushin without witnesses are nothing, and she remains an unmarried woman as before. And also for kiddushin of biah one needs witnesses, and that is witnesses of seclusion who are like witnesses of biah as written in siman 33, except for kiddushin of a shetar in his handwriting, where some say witnesses are not needed, for we learned from a get that his handwriting is like witnesses as written in siman 32, see there; and even in this, most of the poskim disagree on this.

There is a question regarding this: how can we say "there is no matter of ervah with fewer than two [witnesses]," and if one betrothed a woman without witnesses the kiddushin do not take effect at all even if it is true that he betrothed her, and not because they are not believed; if so, a married woman who committed adultery and there are no witnesses to this, only the husband saw that she committed adultery, let us also say that she is not forbidden to him since there are no witnesses here, yet it is simple that she is forbidden to him? The answer to this is that regarding kiddushin, the act of kiddushin forbids her and the Torah decreed that there is no kiddushin without witnesses, whereas regarding adultery, the adultery forbids her and not the witnesses, and witnesses are only required for the sake of credibility; consequently, when he saw it himself, she became forbidden to him [see Tosafot Ketubot 9a, s.v. "U'mi"].

When he betrothed in the presence of one witness, it is also nothing according to the opinion of the Rif, the Rosh, the Rambam, and most of the poskim. However, there are those who were stringent in this and wrote that one must be concerned for the betrothal, and our teacher, the Rema, was likewise concerned for the opinion of the stringent ones, except in a case of agunah or great necessity, where one may rely on the words of the lenient ones who constitute the majority of opinions. The reasoning of the stringent ones is because in the Gemara the Amoraim disagreed regarding this [ibid.] and the halacha was not explicitly decided, and therefore we are concerned for the one who holds that even with one witness we are concerned for the betrothal. But regarding the essence of the matter, it must be understood according to the one who holds that we are concerned for the betrothal: is it not a clear halacha throughout the entire Shas that "there is no matter of ervah with fewer than two"? It appears that this opinion holds that this rule that "there is no matter of ervah with fewer than two" applies to a woman who is already an ervah, such as a married woman whom you come to forbid to her husband as in the case of a sotah, or whom you come to permit to the world as in the case of a get or the death of the husband; in this, we establish that it is not with fewer than two, for the primary "matter of ervah" is written in the section of gittin. But regarding an unmarried woman who comes to be betrothed, it is a kinyan like all kinyanim, for the husband acquires her. Therefore, even though betrothal is mentioned in this section as well, one should not derive "matter" [davar] in betrothal from "matter" [davar] written regarding death and sacrifice, but rather from "matter" [davar] of monetary law, for in the verse it is written, "for any iniquity or for any sin" (Deuteronomy 19:15), and we expound in the Sifrei: "for any iniquity" – this refers to money; "and for any sin" – this refers to a sacrifice; because the kinyan of betrothal is similar to a monetary kinyan. And since in monetary matters we expound that one witness stands for an oath, and we derive it from this verse, therefore there is a reasoning that even with one witness in betrothal we are concerned for it. Therefore they used the language "we are concerned," meaning that they are not complete betrothal but rather a concern of betrothal [and with this several difficulties in this sugya will be settled; however, one must read "R. Elazar said to R. Papa," and according to our version it is difficult: what is his challenge to him, given that Rabbi and Rav hold thus? See there and delve into it].

And also, one who is concerned for kiddushin with one witness is only when they admit to the words of the witness, but if they deny him—it is nothing. And even if one of them denies the witness, it is nothing, for one witness in the face of denial is nothing; and even though regarding monetary matters he would obligate him in an oath—here an oath is not applicable [Rashi]. And some say that when he denies the witness and she admits, or vice versa, the one who admits must be concerned for the kiddushin according to this view. And specifically when the one who denies says that there were no kiddushin there at all, but if he admits but says that he intended it as a joke, then automatically even the one who admits need not be concerned [Bach]. And even though with two witnesses he is not believed to say "I intended it as a joke," nevertheless against one witness he is believed with a migo that if he wanted, he could have denied him entirely. However, there are those who disagree with this, for we do not approach this from the perspective of credibility, but rather because even if he intended it as a joke, matters of the heart are not matters [Chelkat Mechokek and Beit Shmuel], and according to this, even in such a case the one who admits must be concerned for the kiddushin. Nevertheless, the first view can be sustained, for it is obvious that if two witnesses perceived that their intention was merely as a joke, this is not kiddushin at all, and it is better than a disclosure of intent as written in section 12; but when they do not perceive it, we do not follow an assessment. And so too with one witness, if he perceived that their intention was as a joke, it is obvious that there is no concern of kiddushin in this. Therefore, we say that the one who denies and says he intended it as a joke is believed to deny the witness with a migo, and we say that the witness also perceived that his intention was as a joke, and automatically even the one who admits need not be concerned [It appears to me].

And there is no difference whether the witness says she was betrothed before him alone, or whether he says she was betrothed before two and he alone saw and the others say they did not see, and specifically when he does not contradict them by saying they saw; but when he says that he and another one were invited as witnesses and they both saw the kiddushin and the second contradicts him, if the second contradicts the essence of the matter, place one against one and establish her in her status of being unmarried and she may marry initially as was written in siman 47. And if he admits to the essence of the matter but says that the kiddushin were not valid, such as where this one says he was a relative to him and this one says a relative to her—she shall not marry initially for her status of being unmarried has been weakened as was written in siman 30, and if she married she shall not leave. And there are those who are stringent even if the second contradicts the essence of the matter if she does not contradict and says it is possible that he was a relative to her. And if she says there were kiddushin before two, even if the two contradict her, she has made herself a "piece of prohibition," and so it is if he says so, he has made himself a "piece of prohibition" to be forbidden to her relatives. And if there were three at the event and one says she was betrothed and two say she was not betrothed—she may marry initially if she does not contradict the two. And if one witness says "she was betrothed before me and before so-and-so" and that so-and-so is not here—one must be concerned for his words, and if she married she shall not leave, for ultimately there is only one witness here, and even according to our teacher, the Rema, who is stringent even with one witness alone, nevertheless he is lenient in a case of iggun and hardship, and you have no greater iggun and hardship than this when she has married, for if we require her to have a get, she would be forbidden to the second. And if one testifies to the kiddushin and one testifies that he heard from the mouth of another who saw that she was betrothed before him—they join together and she is betrothed. And the law of two against two will be explained in siman 47 with the help of Heaven.

Our teacher, the Rema, wrote: And so too if he betrothed before two people and one of them is a relative—it is like one who betrothes before one witness. Thus far his words. And even though we maintain in Choshen Mishpat siman 36 that if one of the witnesses is found to be a relative or disqualified, the entire testimony is void, here we are dealing with a case where the valid witness is not disqualified, such as where they did not join together for the testimony or where the valid witness did not know of the other's disqualification, as is written there. Furthermore, according to the opinion there that they are not disqualified unless there was seeing and testifying in beit din together, and here there was no testifying in beit din, and consequently at the time of the kiddushin the valid witness was not disqualified [Beit Shmuel]. Furthermore, since the essence of kiddushin with one witness is only a stringency where we are concerned for the kiddushin, consequently one must be concerned for all stringencies; therefore, even if one is found to be a relative or disqualified, one must be concerned ab initio that perhaps it was in a manner where the valid witness was not disqualified according to one of the opinions that exists regarding this law. And know, that it is called kiddushin of one witness even if he betrothed her a hundred times before a hundred people one by one; since there were not two present at one time, it is called kiddushin before one witness, regarding which in a time of great need or a situation of iggun one may be lenient.

From the words of our teacher, the Rema, we learn that even one who is concerned for the kiddushin of one witness, nevertheless, regarding the testimony of relatives or those disqualified, there is no one who is concerned for it; and so too regarding the testimony of women, even if they are a hundred. And the proof for this is that in a place where the Torah validated one witness, such as in monetary matters regarding an oath, nevertheless relatives, those disqualified, and women do not obligate an oath. And so too in a place where the Torah believed one like two, such as regarding a sotah and an eglah arufah to testify that she became defiled after warning and seclusion and that the killer was found, it only believed one like two regarding a valid witness and not regarding a relative, one disqualified, or a woman, as is explained in their respective laws. And that which the Sages, of blessed memory, said [Yevamot 88b] that a hundred women are considered like one witness, the intention is not that they are considered like one valid witness, but rather on the contrary, it is to their detriment: that a hundred women do not have the credibility of two, for if one witness contradicts them, he is not believed; rather, they are considered like one witness in that one is believed to contradict him. This is not the case with a valid witness, where one witness is not believed to contradict him because he is believed like two witnesses, see there. But in truth, their status is not even like one witness. And that which they are believed regarding a sotah not to make her drink and regarding an eglah not to break its neck is because there, testimony is not required at all, for even if they heard it from a bird that flies, the law is so, as is explained in tractate Sotah.

Since one who betroths without witnesses has done nothing, therefore, even if he betrothed in the presence of witnesses, the one betrothing and the one being betrothed must see the witnesses; and not specifically for seeing, but rather that they should know that there are witnesses here seeing the kiddushin. But if the witnesses saw them and they did not know of the witnesses at all, such as where the witnesses saw them from a window and the witnesses see but are not seen by him or by her—she does not require a get from him and it is like kiddushin without witnesses. And some say that even if the man and the woman intended for the sake of complete kiddushin, it is nothing in such a case because this is like kiddushin without witnesses [Beit Shmuel in the name of the Maharit]. And some say also that it is not kiddushin, but not for the reason that was explained, but rather because we are witnesses that they did not intend for the sake of kiddushin [Chelkat Mechokek subsection 7] since they did not see witnesses. Therefore, even if they contradict the witnesses saying that he did not betroth her at all, we also have no practical difference in this, for even if they did not contradict them, it would not be kiddushin for the reason that we are witnesses that they did not intend for kiddushin. And the practical difference between this reason and the previous reason—such as where invalid witnesses stood at the time of the kiddushin and the man and the woman did not know that they were invalid, and if so they intended for the sake of kiddushin, and from afar valid witnesses stood and saw the kiddushin and did not know of the invalid ones at all so as to be invalidated for the reason that invalid ones were found among them; for according to the first opinion, since they did not know of the valid ones—they are not kiddushin, and according to the latter, since they intended for the sake of kiddushin—it is kiddushin [Beit Shmuel subsection 11].

But from the words of our teacher, the Rema, another law is clarified regarding this, for he wrote regarding this law that even if the witnesses heard her say that she is accepting for kiddushin, she can say, "I knew that there are no kiddushin without witnesses and I intended to jest with him," and specifically when she says that she intended merely to jest. But if she denies that she received anything and the witnesses testify that she received—she is no longer believed to say "I intended to jest" and it is kiddushin. Thus far his words. Behold, it is explicit not like the opinions that were explained, but specifically if she says that she intended merely to jest and does not deny the witnesses, but if she says that she intended for kiddushin or if she denies the witnesses entirely—it is kiddushin. And it appears that he holds that in every place where witnesses are required, it is not an obligation that the parties know that there are witnesses here; rather, since they intended for the matter and there are witnesses who saw the matter—the matter is concluded. And only that the practical difference is in a matter where they would not be believed to say [it] when they knew of the witnesses, and without seeing them and not knowing of them they are believed, such as in the claim "I intended to jest" as I have written, and this is the opinion of our teacher, the Rema.

And there is a question regarding this: according to this, what benefit is there in her saying "I intended it as a joke," for matters of the heart are not matters? And especially according to what was written in section 8, that in matters of gittin and kiddushin we follow only the action and not the thought, and if so, even if she intended it as a joke, let it be kiddushin, just as when they saw the witnesses and say "we intended it as a joke" it is nothing, as was written there? And the answer to this appears to me: behold, in all testimony except for monetary testimony, there is a requirement for knowledge and seeing, as the Rambam wrote in chapter 17 of Hilkhot Edut; however, knowledge without seeing or vice versa is nothing. Therefore, when they did not see the witnesses and did not know of them, it is seeing without knowledge when she says she intended it as a joke. And the explanation of the matter—for we have already explained in section 12 that if the witnesses sensed that she intended it as a joke, it is not kiddushin, see there—and if so, when they knew of them and they did not sense that she intended it as a joke, it is matters of the heart, and it is no more than a disclosure of intent, and therefore it is kiddushin. This is not the case when they did not know of them; we say that had they known there were witnesses here, the witnesses would also have sensed that she intended it as a joke, for the sensing of the joke is according to her movements and her winks, and we say had they known there were witnesses here, she would have increased her winks so that the witnesses would understand that she intended it as a joke, and automatically her intent is like seeing without knowledge and it is not testimony [and with this, everything is settled].

The first opinion holds that in any testimony where witnesses are required, just as the witnesses must see the matter, so too the parties must know of the witnesses. The reason appears to me to be that since the Torah decreed that a man and woman who performed kiddushin between themselves without witnesses are nothing, and if so, according to their thought that there are no witnesses here, they have not performed the act of kiddushin that the Torah decreed. And granted that matters of the heart are not matters and a disclosure of intent is of no consequence, nevertheless, this is more than a disclosure of intent, for this is like saying explicitly that they did not intend for the kiddushin that the Torah decreed; for even if they intended for kiddushin, they did not intend for the kiddushin of the Torah, as the Torah decreed that there are no kiddushin without witnesses and they desired to perform kiddushin without witnesses. And this matter is revealed to all, that they did not know of the witnesses; consequently, there are no kiddushin here. And this is also the reason for the second opinion, that we are witnesses that they did not intend for the sake of kiddushin, meaning that they did not intend for the kiddushin that the Torah decreed, as I have written, since they did not know of the witnesses. And there is no practical difference between one and the other except for what was written in section 25.

And know, that from the wordings of our teachers, the Rishonim, there is no definitive proof for this law and there are arguments for both sides. For from the wording of the Rashba, of blessed memory, who wrote in Gittin [81a]: It stands to reason, for example, that he saw the witnesses, but if they see and are not seen by him, she does not require a get because a person knows that without witnesses she is not betrothed; therefore, when he cohabited, he did not cohabit for the sake of kiddushin but for mere licentiousness. Thus far his words. And the Ran wrote similarly there. And from this wording it is somewhat implied that if he had cohabited for the sake of kiddushin, it would be kiddushin according to the opinion of our teacher, the Rema. Yet in Kiddushin [43a], the Rashba, of blessed memory, wrote: And specifically when he betrothed her in the presence of two who are with her, but if he hid witnesses for her behind the fence and she does not sense them—no, for perhaps if she had sensed them she would not have accepted the kiddushin, but now that she thinks there are no witnesses, her acceptance is because she knows that one who betroths without witnesses, his kiddushin are not a concern, and she wanted to toy with him. Thus far his words. This implies somewhat like the opinion of those who disagree. However, even this wording can be reconciled according to the opinion of our teacher, the Rema. And so it is implied from the wording of the Rivash in a Responsum [266] who wrote that as long as she does not see that there are witnesses there, there is no proof that she accepted for kiddushin even if they heard from her mouth that she says so, because she thinks that there are no witnesses here, etc. Thus far his words. This implies explicitly that if she had accepted for kiddushin, it would be kiddushin, and regarding this he brings the wording of the Rashba from Kiddushin, see there. Behold, he holds according to the opinion of our teacher, the Rema [see Beit Yosef].

Disjointed testimony – the sages, of blessed memory, said [Makkot 6b] that it is invalid for capital cases and valid for monetary cases. And what is disjointed testimony? That one witness saw from this window and the second saw from another window and the witnesses did not see one another; and so wrote the Rambam in the fourth chapter of Hilkhot Edut. And regarding matters of gittin and kiddushin, their status was not explicitly explained. And it appears that it is similar to capital cases, for specifically regarding money, where witnesses were only created for falsehood and we only need to know the act, we are not concerned with the separation of the witnesses from one another. However, in gittin and kiddushin, where without witnesses they are nothing, the witnesses must see one another. Furthermore, the reason that in monetary cases disjointed testimony is valid is because in monetary cases one witness is effective for an oath [Tosafot ibid.], but in gittin and kiddushin where one witness is nothing, disjointed testimony is also nothing. Indeed, according to this, one who is concerned in kiddushin for one witness, it is obvious that disjointed testimony is effective. And that which was explained in siman 11 regarding witnesses of unseemly conduct who join together even if they did not see at the same time, this is because the name of the act forbids her and the witnesses only testify to this, and since the matter was revealed by two witnesses, she is automatically forbidden to her husband. And so too in the Gemara [Sanhedrin 30b], there is one who holds that even regarding testimony of two hairs it is effective in such a case; this is also because we only need to know that she brought two hairs. But in gittin and kiddushin, where without witnesses this is nothing and the primary establishment of the get and the kiddushin is through the witnesses, and regarding them "witness after witness" is not effective as I wrote in section 23 and as our teacher, the Beit Yosef, wrote in section 2, see there, it can be said that disjointed testimony is also nothing. And also that which there is an opinion in the Gemara [Gittin 33b] that when he told two to sign on the get it is effective even when he told this one by himself and that one by himself, this is regarding his making them witnesses, but at the time of their testimony, this is not effective not in the presence of one another. And that which will be explained in siman 130, that the fact that the witnesses of the get do not sign without one another is only because of a decree and not from the essential law, this is also because at the time they sign, the act of the get is not completed until the delivery into her hand, and then truly the witnesses of delivery must be together as I wrote in siman 133. And even according to the one who holds there that even if he delivered it between him and her with the witnesses of signature alone it is valid, this is because we consider the signed witnesses as if they are standing now at the time of delivery, and behold this is also both of them together since now both of them are signed on it. And even though it so appears to me in my humble opinion for the halakha, nevertheless in practice one should be stringent, and if he betrothed a woman based on disjointed testimony, it is a case of doubtful kiddushin [see Beit Shmuel siman 133, subsection 1 and the HaGra subsection 3, and it requires further study what the connection is of one to the other, and also the words of the Beit Shmuel in siman 11 subsection 13 require further study, see there, and see Noda BiYehuda siman 72, and his words were not clarified to me].

If he betrothed in the presence of witnesses, even if he did not say "you are my witnesses," she is betrothed, for the witnesses do not need to be designated, as is written in Choshen Mishpat siman 39; rather, since they saw the act, they testify about it. Accordingly, even if he specified witnesses, others who saw the act can testify. Nevertheless, it is proper to specify witnesses for the kiddushin under the chuppah, and so they have practiced in several holy communities, and it is very proper for several reasons. The first—because most of those standing there are preoccupied with the festivities of the groom and bride and do not look at the essence of the kiddushin so that two witnesses see it according to the law of the Torah. The second—that for the most part, those standing near the groom and bride are relatives and are disqualified for testimony, and those fit for testimony stand at a distance and because of the crowding do not see the kiddushin at all, and it turns out to be kiddushin without witnesses. The third—that according to several poskim, when relatives and non-relatives see a certain testimony, the non-relatives are also disqualified according to the law of "one is found to be a relative or disqualified." When they specify witnesses, the relatives do not disqualify them, as is written in Choshen Mishpat siman 36. It is proper that the groom specify the witnesses, but because of bashfulness one cannot burden him with this; therefore, it is proper that the rabbi arranging the kiddushin specify the witnesses. They have practiced specifying the chazzan and the shamash because they stand near the groom and bride, and if one of them is a relative, he should specify another [and that which is in Keritot 12b and in the Tosafot Yeshanim there, it appears that it deals not with eyewitness testimony but with hearing a lengthy matter, and in that, certainly without intent to testify one will not remember well after a time, see Pitchei Teshuva subsection 11].

Our teacher, the Rema, wrote that the witnesses must see the actual giving into her hand or into her domain, but if they did not actually see the giving into her hand, even if they hear him say "Be betrothed to me with such-and-such an object" and afterwards it emerged from her hand – they are not betrothed until they see the actual giving, and we do not follow estimations or proofs in this matter. Thus far his words. And the intention is not because of the doubt that perhaps the object did not pass from his hand to her hand, but rather even if it is clear that it passed from his hand to her hand they are not betrothed. For so it is explained in the source of the law regarding an incident involving two people who were standing behind a certain fence and heard Reuven say to Leah "Be betrothed to me with an etrog" and they did not actually see the giving; and the Rashba ruled [siman 780] that there is no concern of kiddushin here, even if she admits that she took it for the sake of kiddushin, for actual testimony of seeing and knowing is required. Thus far his words. And it must be said that Reuven and Leah knew of the witnesses, for if not, even without this there is no concern of kiddushin as I wrote in section 25. And this is a proof for what I wrote in section 5, that gittin and kiddushin are not similar to monetary laws and we do not follow estimation in them; even if it is a proven estimation, nevertheless it is nothing. And it is also a proof for what I wrote in section 27, that in gittin and kiddushin there must be knowing and seeing, and this is knowing without seeing. And if it is difficult: why in kiddushin of intercourse is witnesses of seclusion alone sufficient, for is this not knowing without seeing? However, certainly in kiddushin of intercourse this is also called seeing, for it is impossible to actually see, and when they see that they were secluded it is like seeing that he had relations with her. But in money and a document, actual seeing is required [and so wrote the Rashba in siman 1193, that we require knowing and seeing, see there]. And know, that the witnesses do not need to recognize the woman, who she is, but afterwards when she denies the betrother and says "It was not I" – she is believed; and see the Be'er Heitev subsection 12, and it is simple.

As has been explained, it is also proven from the words of the Rambam in chapter 3 of Ishut and in chapter 10 of Gerushin that only regarding intercourse do we say "the witnesses of seclusion are the witnesses of intercourse," but regarding other forms of kiddushin, the witnesses must see the actual kiddushin. However, there are some among the Rishonim who were uncertain about this, for perhaps just as with intercourse one does not need to see the actual act, so too with kiddushin of money, if they saw something that proves he gave it to her, it is as if they saw the actual kiddushin [Maharam of Rothenburg in the Mordechai chapter 3 and at the end of Gittin, and in Teshuvot Maimoniyot Nashim 61]. According to this, we would have to say that witnesses of kiddushin are established through knowledge without seeing [Beit Shmuel subsection 12], for just as regarding inquiry and investigation the law of kiddushin is like the laws of monetary matters which do not require inquiry and investigation, as will be explained, so too regarding this matter. According to this opinion, we follow a legal assessment in kiddushin, unlike what was written in section 8 and section 27 [and one must further analyze the Beit Shmuel, for he himself recanted at the end of the Responsa in all places based on the words of the Rambam, see there; and perhaps he intended his words that we brought, and delve into it].

However, in truth, there is no proof at all from examination and inquiry, for the Rashba, who ruled that we require knowledge and seeing as I have written, he himself ruled that examination and inquiry are not required [in the Responsa, siman 566]. And what is the relevance of examination and inquiry to this? For examination and inquiry must be in a beit din, and according to the law we have no beit din at all, as we do not have ordained judges, but rather we perform their agency as is written in Choshen Mishpat siman 1, and we only perform their agency in a necessary matter as is written there. And since there is no necessity for examination and inquiry, we do not perform their agency. In a case of necessity, such as if fraud is apparent in the matter, in truth examination and inquiry are required as will be explained. But the testimony of witnesses who are present now is by Torah law just as in the time of the Temple, and it is certainly required as in capital cases; and on the contrary, it is more stringent than capital cases, for in capital cases even without witnesses the act is an act, only that to testify in beit din requires testimony, but in gittin and kiddushin the act is not established at all without witnesses, and it is obvious that knowledge and seeing are required. And this is implied explicitly in the Rambam, chapter 17 of Hilkhot Edut. And since actual seeing is required, it follows automatically that we do not follow a legal presumption. And that which the sages said, that we do not examine witnesses of women with examination and inquiry because since she must collect a ketubah it is similar to monetary laws [at the end of Yevamot], and it implies that according to the fundamental law examination and inquiry are not required—this is regarding testimony of a woman whose husband died and not regarding gittin and kiddushin. And even regarding testimony of a woman whose husband died, the Rambam wrote at the end of chapter 13 of Hilkhot Gerushin that the reason is because of an agunah and not according to the fundamental law, see there. Nevertheless, in practice it is difficult to be lenient regarding a strong legal presumption in kiddushin, and she requires a get [and so it is implied from Tosafot at the beginning of the fourth chapter of Gittin, that we follow a legal presumption in gittin and kiddushin; even though one could reject this by saying they wrote this according to Rava while we rule according to Abaye, nevertheless, in practice one should not be lenient].

Our teacher, the Rema, further wrote: One who betrothed through a hole in the wall, such as where a woman extended her hand through a hole and a man came and gave her kiddushin, and the hole is narrow and it is impossible to see her at the time of the kiddushin, and she says that she did not hear that he betrothed her – she is believed with a migo that she could have said it was not her hand but the hand of another, provided there are no witnesses who contradict her. Thus far his words. And there is one who interpreted his words that if she says she heard when he betrothed her, it is a complete kiddushin even though the witnesses did not see her at all since the hole is narrow, and it is similar to witnesses of cohabitation where it is not necessary to see the act itself and witnesses of seclusion are sufficient. However, the opinion of our teacher, the Rema, has already been explained that one should not derive the laws of money and a document from cohabitation, and therefore one must say that since they saw the hand extended through the hole it is like actual seeing even though they did not know from which body it came, or it is possible they knew that this woman stood on the other side of the wall near the hole and nevertheless she has a migo that she could say that at the actual moment of the kiddushin another woman came and extended her hand into the hole, and even though the witnesses say it was possible to hear the kiddushin, nevertheless since they do not say she certainly heard, this is only a concern and we say a migo in a place of a concern of witnesses. And so too even though the witnesses say that a moment before the kiddushin she stood near the hole, nevertheless it is not certain that she inserted her hand into the hole and therefore it is a good migo, and nevertheless they are called actual eyewitnesses since they saw the hand and there is also actual knowledge in this as they knew this woman stood there a moment before, and she, even though she did not see the witnesses, nevertheless since she knew of the witnesses it is as if she saw them. Or it is possible even if they did not know at all if this woman stood there, nevertheless it is called knowledge and seeing because of the hand, since they knew and saw this hand it is like seeing the entire body and like knowledge, for even if they see the woman and do not recognize her, that too is not complete knowledge, and nevertheless it is obvious that it is called knowledge and seeing, and if so, here too seeing the hand alone is also called knowledge and seeing, and it requires further study for practical application. But in the Responsa of the Rashba it is explicitly explained that the witnesses must know to which body the extended hand belongs, for he wrote that since the second witness says he did not recognize whose hand this was, there is only one witness here; see there.

He further wrote that any testimony that was not examined in beit din is not called testimony regarding the matter of kiddushin, and therefore even if witnesses said outside of beit din that she was betrothed, they can retract in beit din to say she was not betrothed, and similarly the reverse. Witnesses of kiddushin do not require derishah and hakirah, except in a matter where it appears there is deception. Thus far his words. And it is consequently explained that what he wrote, that anything not examined in beit din is not called testimony, refers to a case where derishah and hakirah are required, such as in a case of a deceptive lawsuit [the Gra, subsection 18], and it is necessary to say so, for behold it deals with the matter of the retraction of the witnesses, and it is simple that in such a case derishah and hakirah are required. And it is simple that if she denies the witnesses, derishah and hakirah are required, for which reason it was explained in siman 11 that to forbid a woman to her husband requires derishah and hakirah because she denies them, and here, where the witnesses themselves retract, it is simple that even if she does not deny, it is like the law of a deceptive case and requires derishah and hakirah [and what the Beit Shmuel wrote in subsection 14 requires further study as to why he required her denial].

He wrote further: If they found written in a document "Ploni betrothed Plonit" and witnesses are signed on it, as long as the document is not validated there is no concern for kiddushin, and not like the one who is stringent in the matter. Thus far his words. And some say that one certainly must be stringent in the matter, for by Torah law witnesses signed on a document are considered as if their testimony was investigated in beit din, and from the Torah it does not require validation. However, the primary view is like the words of our teacher, the Rema, for this only applies to a document found in the hand of the litigant; but here, if the man and the woman admit to the kiddushin, it is obvious that it is kiddushin. And here, perforce, we are dealing with a case where they deny it and say the document is forged and the document was not found in their hand; and if so, in such a case, it is obvious that from the Torah it requires validation. And even if the document is in his hand and he says that he betrothed her, if she denies it, this is nothing, for a document of kiddushin must be in the hand of the woman like a get, and this is not similar to a document that a lender produces against a borrower. And even if this document is not a document of kiddushin but rather a document of evidence regarding the kiddushin, wherein the witnesses testify that he betrothed her on such-and-such a day and in such-and-such a place with money or the equivalent of money, it is also not similar to a document in the hand of a lender; for there, the document is from the Torah and the essence of the loan is based on the document, but a document of evidence regarding kiddushin is not the essence and is not the custom and is not included in the category of documents of which it is said that it is considered as if their testimony was investigated in beit din. On the contrary, since this document of kiddushin deviates from the custom, you have no greater flaw than this, and in a place of a flaw, it is obvious that it requires validation from the Torah. However, regarding an actual document of kiddushin that is produced from her hand while he denies it—it appears that it is similar to a document in the hand of a lender, which does not require validation from the Torah.

And even regarding that which is implied from the words of our teacher, the Rema, that when the document is authenticated it constitutes kiddushin, and similarly if it is possible to authenticate it, it is as if it were authenticated—there are those who disagree on this and hold that we do not rely on a document when it was written without the knowledge of the woman, for this is not a document and is nothing more than a mere notebook; and testimony must be testified from their mouths and not from their writing, and it is not similar to a monetary document in Choshen Mishpat siman 28, for this is only like a mere notebook [Rashba siman 1,209 and see Chelkat Mechokek]. And according to this, if it is written in the document, "And the woman said to us: 'Write, sign, and give into the hand of so-and-so who betrothes me, to be in his hand as proof that he betrothed me'"—it constitutes a complete document [Chelkat Mechokek subsection 10]. However, some say that even in such a case it does not constitute a document for the reason we have written, for specifically regarding debt documents there is a basis for this from the Prophets from the mouth of the Holy One, Blessed be He, as it is written: "And write in a book and seal and call witnesses" (Jeremiah 32:44); but a document of proof regarding kiddushin may not be written, and the Merciful One said: "from their mouths" and not from their writing [ibid. in the name of Hagahot Mordechai]. And this is not related to what was written in siman 17 section 75 regarding one who found written in a document "so-and-so died," for there a document is not required but rather a mere notification, and witnesses are not required as was written there; and see what I wrote there in section 78.

And it appears to me that the intention of our teacher, the Rema, is that regarding a matter that is not established, there is no concern at all; but regarding a matter that is established, there is a concern, and one must search for the witnesses, and the matter will be clarified of its own accord. And if one produced a deed of kiddushin and witnesses say that he once requested of them to forge a deed of kiddushin—we presume this document as well to be a forgery, but if they should come and testify that both of them requested to write the deed, it is certainly kiddushin. However, the beit din must investigate and examine the witnesses [to see] if they are not presumed to be wicked, since this individual is suspected of searching for forging witnesses, and it is proper for the beit din to remove obstacles and not to give place for transgressors to sabotage and debase the daughters of Israel. And if one put out a rumor that he betrothed a certain virgin and says that he has witnesses who are not now in the city—we do not concern ourselves with his words, even if he says they will arrive today or tomorrow, and even if he says the names of the witnesses, and even if she is his betrothed, we do not pay him heed if there is no rumor that he betrothed her according to the law of a rumor that will be explained in siman 46. And so too, if the beit din understands according to the matter that it is possible that he betrothed her, then they concern themselves with his words and wait for the witnesses, but without this, there is no concern. And it is not similar to what was written in siman 157 regarding one who died with the presumption that he has no brothers and a rumor went out that he has brothers, and the witnesses who know of this according to the rumor are in another country, where one must concern oneself with the rumor even if the rumor was not established in beit din, and she is forbidden to marry until they ask the witnesses; for it is different there, as she was his wife from before and was permitted through his death, and since there is a rumor, she has not yet been properly permitted. This is not the case regarding kiddushin, where this woman has no connection to this one who put out the rumor, and even if she is his betrothed, what of it? She is not yet bound to him in kiddushin. Furthermore, there, there is no one to suspect, but here, there is reason to suspect this one who wants to extract money from her; and if we were to concern ourselves with such rumors, how many hooligans are there who would put out rumors regarding the daughters of Israel. Therefore, if the beit din does not see according to their understanding that there is truly cause for concern, there is no concern at all in this.

The Rambam wrote in chapter 4: One who betroths with those disqualified from testimony by the Torah – she is not betrothed; with those disqualified from testimony by the words of the scribes, or with witnesses who are of uncertain disqualification by the Torah, if he desired to marry her, he must return and betroth with valid witnesses, and if he did not desire to marry her, she requires a get from him due to the doubt. And even if the woman denied and contradicted the witnesses and said "you did not betroth me" – they compel her to take a get. And such is the law of all uncertain betrothals: if he desired to marry her, he must return and betroth with certainty, and if he did not desire to marry her, she requires a get from him due to the doubt. Thus far his words. And consequently, if another person stood and betrothed her, she is betrothed to the second due to the doubt, and she requires a get from both of them if they do not desire her, or the first shall divorce her and the second shall marry her. But if the second divorces her and the first marries her – it is forbidden; even though by the law it is permitted, nevertheless we decree so that they should not say that the first divorced her and another betrothed her afterward and divorced her and she was married to the first, as I have written in siman 31, see there.

And that which he wrote, that in a case of doubt if he desired to marry her he must return and betroth her before valid witnesses—even though in a case of doubt regarding divorce the Rambam ruled in chapter 10 of Divorce that if he desired to marry her he does not require other betrothals—the reason is simple: for regarding betrothal, when there is a doubt, she remains with the legal status of an unmarried woman, and for this reason he must betroth her anew; but in a case of doubt regarding divorce, she remains with the legal status of a married woman [Kesef Mishneh in the name of Maharik]. Nevertheless, even in a case of doubtful betrothal, he does not return and recite the blessing of erusin [Beit Shmuel subsection 17], for blessings are not indispensable.

And that which he wrote, that we compel her to take a get, it appears his intention is that she is not believed to contradict the witnesses and to marry without a get. In the Tur, the version is "and we compel him to give a get," and so wrote the Shulchan Aruch in section 5. And it is not understood: if he is prepared to betroth her a second time as has been written, why should we compel him to give a get? And it must be said that their intention is when he does not want to betroth her, and consequently she is not his, and also to another she is unable to be betrothed, and therefore we compel him to give a get. And it is also possible that even when he wants to betroth her anew, if she contradicts the witnesses, her law is like one who says to a woman "I betrothed you" and she says "you did not betroth me," where we compel him to give a get. And even though she is not believed to contradict the witnesses, nevertheless, since even according to the words of the witnesses it is only a doubt of kiddushin, there is reason to say that we compel him if she does not desire him and contradicts the witnesses. However, the great Acharonim did not write so.

And that which he wrote, that regarding those disqualified from testimony by the words of the scribes it is a doubt, his intention is for those disqualified by rabbinic law and not for maternal relatives. And even though in chapter 13 of Testimony he wrote that maternal relatives are disqualified by the words of the scribes, his intention is not that they are disqualified only by rabbinic law, for all the Rishonim have already agreed that there is no difference between paternal relatives and maternal relatives. Rather, it is the way of the Rambam to call anything that is not explicitly stated in the Torah "words of the scribes," meaning that the scribes received this by tradition reaching back to Moses from Sinai, just as he calls kiddushin with money "words of the scribes." Nevertheless, there is one who holds that maternal relatives are only by rabbinic law [see Beit Shmuel subsection 16], and so it is implied from the words of our teacher, the Rema, in Choshen Mishpat siman 33, see there.

And that which he wrote, that if another betrothed her she requires a get also from the second, some say that this is only in a case of doubtful kiddushin, but one who betroths before those disqualified by rabbinic law, there is no concern for the kiddushin of the second since from the Torah the witnesses are valid. However, our teacher, the Beit Yosef, in his great work, holds that even with those disqualified by rabbinic law she requires a get also from the second, and even if both betrothed her before those disqualified by rabbinic law she requires a get from both of them, for as long as the kiddushin of the first were not completed, the kiddushin of the second also take effect to require her to have a get, for behold there are some among our great teachers who hold that when one betroths before those disqualified by rabbinic law the kiddushin are void, for anyone who betroths does so based on the will of the sages, and although we do not rule accordingly, nevertheless, certainly there is concern for the kiddushin of the second to require a get from him, and so it is explicitly implied from the arrangement of the wording of the Rambam, of blessed memory, and one should not doubt this at all.

The laws of disqualifications for testimony are explained in Choshen Mishpat siman 33, see there, and in siman 34. And there it is explained that regarding one who violates a shevuat bitui, some say that he is only disqualified for a past-tense oath, for at the moment the oath left his mouth, it left in falsehood, but not for a future-tense oath. And some say that even according to the one who disqualifies for testimony, it is only midrabbanan [see there in the Be'er Sheva regarding if the testimony of the disqualified was not accepted in their presence].

Some say that which we say, that one who betroths with witnesses disqualified by rabbinic law we are concerned for the kiddushin, this is regarding ordinary kiddushin of Torah status; however, regarding kiddushin of rabbinic status, such as one who betrothed a minor orphan based on the word of her mother and brothers, or even if she is not an orphan but the father is in a distant place—there is no concern for the kiddushin at all even with those disqualified by rabbinic law. However, if the father consented when he heard, according to the opinion of the one who is stringent in this in siman 37—it certainly would be kiddushin; yet as long as we do not know that he consented, there are no kiddushin of Torah status here.

Witnesses disqualified who were disqualified after the kiddushin, and at the time of the kiddushin were not yet disqualified, according to the law if others testify regarding their testimony at the time of the kiddushin it is kiddushin. However, the disqualified individuals themselves are not able to testify in beit din regarding the kiddushin after they were disqualified, even though they were fit at the time of the kiddushin, for since they are now disqualified, their testimony is not accepted. Nevertheless, it is proper that the beit din search for other witnesses [see Responsa of the Rivash siman 266 and Divrei Rivot siman 185, and the Ba'er Heitev in subsection 14 wrote in their name that it is not kiddushin, and he did not transcribe properly and placed a stumbling block, and it is a mitzvah to erase it].

One who has relations with a forbidden woman, even though he is a complete rasha, nevertheless there are those who say that if he was a witness to a kiddushin we are concerned for the kiddushin, for the reason that because his inclination overcomes him in this more than in all other transgressions, we therefore do not have the power to disqualify him regarding a severe forbidden relation [this is according to the approach of the Rif and Rabbeinu Tam in Sanhedrin 26b that "suspected" means he actually came upon her, and according to the poskim who follow Rav Nachman and according to our version "we did not say this," and examine this closely].

And there are some of our teachers who hold the opposite, that regarding other transgressions a person is not disqualified by mere suspicion, but one who is suspected of forbidden sexual relations—even though there are no witnesses that he cohabited with the forbidden woman but is merely suspected, and certainly he is not disqualified by the Torah for all testimony—nevertheless, for testimony concerning a woman, he is disqualified, whether regarding kiddushin or regarding divorce, and likewise to testify that her husband died, he is disqualified [Rashi], for since his inclination overpowers him in this matter, he cannot be a witness in these matters. And one who isolates himself with forbidden women is disqualified by rabbinic law [Beit Shmuel], and one who hugs and kisses them—according to the opinion of the Rambam in the first chapter of Issurei Biah, he is disqualified by the Torah. And the Rambam, of blessed memory, did not mention these laws at all, neither in the Laws of Ishut nor in the Laws of Testimony [see Beit Yosef on the Tur, Choshen Mishpat, siman 34].

And know, that in my humble opinion it would appear from the sugya of the Shas that what we have explained is only when he comes to testify regarding the kiddushin or the divorce, for therefore we do not believe him because he is suspected of lying due to his foul desire; however, when he was a witness at the time of the kiddushin—certainly the suspect is valid according to the Torah. But the great Acharonim did not understand it so [see Chelkat Mechokek subsection 15 and Beit Shmuel subsection 21], and it is simple that one must follow everything according to the stringency. And there is much to be meticulous about in this time regarding witnesses for gittin and kiddushin, for those who are loose in any transgression, even a light transgression, are indeed disqualified for testimony.

Our teacher, the Rema, wrote: One who betroths before those disqualified from testimony by Torah law due to their wickedness, such as before forced converts or other wicked people, some say we concern ourselves with the kiddushin lest they repented, and some are lenient. Thus far his words. The great later authorities wrote that they do not disagree in the law, for certainly regarding a wicked person in whom signs of purity were not seen and who does not exert himself in his Judaism, we do not concern ourselves that perhaps he repented; but those who exert themselves to emerge from the upheaval and afterwards repented, his end proves his beginning that his heart was always toward Heaven, and therefore we concern ourselves that perhaps he meditated on repentance in his heart [ibid.]. And there was an incident before Rashi, of blessed memory, regarding a forced convert who betrothed before his fellow forced converts and they repented, and he said she requires a get because perhaps they meditated on repentance in their hearts [Beit Yosef in the name of the Maharik]. Furthermore, he wrote that these forced converts who were required to transform themselves due to fear because it was impossible for them to escape for their lives, and in private they fulfill the mitzvot – they are fit for testimony. Thus far his words. And know, that all this is not relevant in our times when the kings of the nations are kings of kindness and Heaven forbid they should coerce the abandonment of religion, and therefore one who is wicked is wicked of his own accord and not from compulsion, and how can we concern ourselves that perhaps he meditated on repentance in his heart? And that which was explained was only in previous times, as is known how they oppressed Israel to abandon the religion. And even though one who betroths "on condition that I am a righteous man," even if he is completely wicked we concern ourselves that perhaps he meditated on repentance as written in siman 38, this is because he said "on condition that I am a righteous man" and there is a basis for the matter that his thought was for the good, but not regarding ordinary wicked people without compulsion [it appears to me].