Siman 47

Two say, "We saw that she was betrothed," and two say, "We did not see that she was betrothed" — she is certainly betrothed, even if she denies them, and even if they all dwell with her in a courtyard. In any case, this is not a contradiction, for "we did not see" is not a proof, as it is possible she was betrothed in private, for such is the way of people to betroth in private so that another does not precede him, or when one betroths a woman who is not fitting for him. Therefore, even if she married one of those who say "we did not see that she was betrothed" — she must leave. And if they were all in one standing and say "we did not see," it is like two saying "she was betrothed" and two saying "she was not betrothed," which will be explained nearby. And that which we said, that "we did not see" is not a proof, specifically in one courtyard is where we say this, that it could be that these did not know of the betrothal; but if they dwell in one house and say "we did not see," it is as if they say "she was not betrothed," for it is impossible to do it so privately that the people in one house would not sense it. And likewise, if these two say that she was betrothed in front of everyone, and these two say "it is a lie, we did not see the betrothal" — it is also as if they say "she was not betrothed."

If two say she was betrothed and two say she was not betrothed, it makes no difference if the contradiction is regarding the essence of the kiddushin and they say she never even had a doubt of kiddushin, and it makes no difference when they admit to the essence of the kiddushin, such as when all admit that he threw her kiddushin but two say it was close to her and two say it was close to him, and she also says she was not betrothed—she shall not marry, and if she married, she must leave. And even though according to the Torah we establish two against two and establish her in her status of being an unmarried woman, nevertheless, the sages were stringent regarding two and two in every case, even after the fact. However, if she married one of her witnesses who contradict the kiddushin and she also says, "it is certain to me that I was not betrothed"—she shall not leave. And the reason is that every case of two and two, even where there is no status of permission, is a doubt of a prohibition and its obligation is a guilt offering of suspense like a doubt of forbidden fat or permitted fat, and in all doubts a person is believed regarding himself to say, "it is certain to me that there is no doubt of a prohibition here," and all the more so here where there is additionally a status of permission, and therefore she shall not leave. And we have explained this further in siman 17, section 88; see there.

The Rambam, of blessed memory, wrote at the end of chapter 9: If one witness says, "This woman is betrothed," and she says, "I was not betrothed" – she is permitted. If one says she is betrothed and one says she is not betrothed – she shall not marry, but if she married, she does not go out, for she says, "I was not betrothed." Thus far his words. And behold, that which he wrote regarding her contradicting the witness, that she is permitted, and it is clear from his words that she is permitted even initially – this is a decided law throughout the Shas, that one witness in the face of contradiction is nothing, and therefore even if the witness says she was betrothed in the presence of two witnesses – it is nothing when she contradicts him. For if the witness were to say she was betrothed only in his presence alone, then even without the reason of contradiction it would be nothing, as the Rambam holds that one who betroths with one witness, we do not concern ourselves with his betrothal. However, that which he wrote, that if there is also a witness who contradicts him, she shall not marry initially, requires a reason; for if there is a witness who says like her, is it worse? And the commentators wrote that the Rambam holds it is indeed worse, for when there is a witness contradicting the witness, she is emboldened to say, "I was not betrothed," and therefore initially she shall not marry. And this is what the Sages, of blessed memory, said: One witness says she was betrothed and one witness says she was not betrothed – she shall not marry, but if she married, she does not go out. And this deals with a case where she also says, "I was not betrothed," for if she says, "I was betrothed," it is obvious that she has made herself a forbidden piece, and even if she says she has a doubt whether she was betrothed or not, and even if she married she goes out, for she concerns herself with the doubt of being betrothed. Therefore, even if she also says she was not betrothed, and were it not for the witness who says like her she would have been permitted initially, yet through the witness it is worse, as has been explained. And according to this, it must be said that this is specifically when the witness said first that she was not betrothed and afterwards she spoke like him; but if she said first that she was not betrothed, she was permitted immediately, and the reason of being emboldened is not relevant since she did not know there was a witness who says like her. And according to this, a new law emerges for us: that which we established that one witness in the face of contradiction is nothing, this is when a contradicting witness did not also precede the witness; but when a witness preceded – one must be concerned initially.

But the Tur and the Shulchan Aruch wrote: If one witness says she was betrothed and one witness says she was not betrothed, if he said that there was never a doubt of kiddushin regarding her – she may marry ab initio, and if he threw kiddushin to her and one says it was closer to him and one says it was closer to her – she shall not marry, and if she married she shall not leave. Thus far their words.

And this is the opinion of most of our teachers, the Rishonim, that witness against witness regarding kiddushin is nothing, for she remains in her status of being an unmarried woman. However, if both of them admit that he threw her kiddushin, but the one who permits says that they were close to him, her status of being an unmarried woman is weakened, and therefore she should not marry ab initio [Tosafot ibid.]. Furthermore, one can easily err between "close to her" and "close to him," and therefore we are stringent that she should not marry ab initio [Ran ibid.]. Likewise, if there was preparation for kiddushin, such as lit candles and spread beds, but one says that the kiddushin were not completed—her status of being an unmarried woman is weakened and she shall not marry ab initio [Tosafot]. And regarding these instances, the Sages, of blessed memory, said [ibid.] regarding witness against witness in kiddushin, that she should not marry ab initio, but if she married, she shall not be removed.

And it is a simple matter that even according to this view, it deals with a case where she also says, "I was not betrothed," or where she says that she does not know of the kiddushin at all in a manner where she is not required to know, such as when one says that her father accepted kiddushin on her behalf during her minority and another contradicts him [Ra'avad]. However, if she herself casts doubt upon the kiddushin and says that it is a matter of doubt to her whether there were kiddushin or not—they agree with the Rambam that she has made herself a prohibited matter of doubt. Or perhaps when she says that she does not know if it was closer to him or to her, her words are as if they are nothing, and if she married she does not go out [and so it appears from the Ra'avad and so wrote the Maggid Mishneh, see there], for this is not called fearing a doubt of kiddushin. For this would be so if there were no witness saying it was closer to him, then it would certainly be a doubt of kiddushin; but with witness against witness and she stands in her status of permissibility regarding the matter of not going out, her words saying that she does not know do not remove her status unless she speaks according to the words of the witness who says she was betrothed [see Beit Shmuel subsection 6 who rejected the words of the Perishah, and it requires further study for it appears the primary view is like the Perishah; and what the Tosafot wrote that "we know," they meant since both of them say so, and what difference is there to me if there are two or a hundred or a thousand, and examine this carefully].

According to these opinions, it appears that even regarding a single witness in a case of contradiction, the law is so. For example, if one says she was betrothed and she contradicts him regarding the essence of the kiddushin—a single witness in the face of contradiction is nothing and she may marry ab initio. However, if she also admits that there were preparations for kiddushin but says that the kiddushin were not completed and the witness says they were completed, or if she admits that he threw her the kiddushin but says they were closer to him and the witness says they were closer to her—she may not marry ab initio. For behold, this opinion holds that there is no difference regarding a single witness in a case of contradiction whether the litigant contradicts him or whether a single witness contradicts him. And if so, just as in a case where a witness contradicts him in such a manner she may not marry ab initio, so too in the case of her contradiction [see Rashi, Kiddushin 65b, s.v. "a single witness in a case of contradiction, where there is one witness who contradicts him," thus far his words; and see Yoreh Deah siman 127 section 1 in the Hagah and in the Shach subsection 14, and delve into this].

And also in the words of the Rambam, his intention can be explained regarding "one says she is betrothed and one says she is not betrothed" that it deals with a case where both admit that he threw [the betrothal money], but they differ regarding whether it was closer to him or to her [Ran], and according to this, he does not disagree with the other poskim. And the explanation of his words is that she, who contradicts the witness, can be in contradiction regarding the essence of the matter, but ordinary people who contradict one another in a matter that does not concern them, it is unlikely that the contradiction would be regarding the essence of the matter, but rather in its details. And it can also be explained in his words that it deals with a case where she is silent, and therefore ab initio she shall not marry because he holds that one witness in a case of contradiction, which the sages of blessed memory said is nothing, is only in the case of a contradiction by a party to the case and not in the case of a contradiction by a witness; or that he holds that since she is silent, her presumptive status is weakened. And that which he wrote, that if she married she shall not leave "for behold she says I was not betrothed," thus far his words, it means to say that this is like saying "I was not betrothed" since she married. And his wording is precise, as he wrote "for behold she says," yet he did not explain that she says [so]; rather, by her marriage, she behold says "I was not betrothed" [it appears to me].

If she said of herself, "I have been betrothed," and there are no witnesses before us to testify to this, and she retracted and said, "I am unattached," within the time of a continuous utterance – she is believed. And even though we maintain that regarding kiddushin, within the time of a continuous utterance is not effective, this applies to the act of kiddushin itself, where a retraction within the time of a continuous utterance is not effective, but not regarding a statement [Beit Shmuel]. However, after the time of a continuous utterance, she is not believed and is forbidden to be betrothed to another. Nevertheless, if she provides an explanation for her words—that she spoke so initially so that unworthy men would not leap upon her, or the like, and we see substance in her words, such as if she is great in beauty or wealth and the like, such that there are many who leap upon her—she is believed. And even if she was betrothed previously and afterwards gave an explanation, she is also believed [ibid.], for a good explanation completely nullifies her previous words, and it follows that she was entirely unattached. But if she did not give an explanation, or if she gave one and there is no substance to it according to our eyes' perception – she is not believed.

Therefore, if she accepted kiddushin from another, it is a case of doubtful kiddushin. The Rambam wrote that consequently he gives her a get and she remains forbidden to him and to everyone until her fiancé arrives. Thus far his words. There is one who wishes to say that witnesses must testify that this is her fiancé [ibid.], but it is not so; for if so, why do we require a get from this one who betrothed her here, for surely kiddushin does not take effect with a married woman? Rather, the intention is that this one who arrived shall say that he betrothed her previously, and therefore without a get from the second one she is not permitted to him [the Maggid Mishneh]. However, by means of a get she is permitted to the fiancé in any case: for if it is true that she is his fiancée—it is well; and if not, she is an unmarried woman, and we do not fear that perhaps she was the fiancée of another, for we do not suspect this one who arrived of saying a lie from the outset and that she would admit to his words. And there is one who wishes to say that even if she does not admit to him and says that she is an unmarried woman and did not accept kiddushin from him, nevertheless she is permitted to him; since he says that she is his fiancée, her first words are automatically fulfilled, and what does it matter to us [Chelkat Mechokek]. Nevertheless, there is room to hesitate regarding this, for she is in our eyes under the presumptive status of a married woman, and now that she contradicts him it is as if she says "I was not betrothed to you but to another," for we do not believe her when she says "I am an unmarried woman." This requires further study for the law.

And some say that all this refers to where she said "I have been betrothed" without specification, but if she said "I have been betrothed to so-and-so," she is no longer believed to say "I am unattached" even within the time of a speech, and even if she gave a good explanation, and she is forbidden to everyone until that so-and-so comes or until he dies, for it is not within her power to disadvantage him and release herself from him. And some say that within the time of a speech, even in such a case she is believed, since it is merely speech, and only after the time of a speech is she not believed even with a good explanation, for how could she release his right; and even though she has a migo that she could have not said she was betrothed, it is a migo in retrospect, and she also does not have a migo of "you divorced me," for even if she were to say so she would be forbidden to another. However, if he contradicts her and says that she was not betrothed to him—she is also believed with a good explanation to retract, but without a good explanation it is like one who says "you betrothed me" and he says "I did not betroth you," which will be explained in siman 48.