Siman 48

One who says to a woman, "I betrothed you in the presence of so-and-so and so-and-so and they have gone to the provinces of the sea" [Tur], and she says, "You did not betroth me" – he is forbidden to her relatives, such as her mother, her sister, and her other relatives who become forbidden because he betrothed her, for he has established upon himself a "piece of prohibition," but she is permitted to his relatives because he is not believed to forbid her. And even he, if he had relations with one of her relatives, he has not disqualified her from the priesthood, for just as he is not believed regarding the woman, so too he is not believed regarding her relatives, and only he has performed a prohibition [Pitchei Teshuva].

Some say that specifically when he said, "I betrothed you before so-and-so and so-and-so," but if he said "I betrothed you" without specification – he is not forbidden to her relatives, for he can clarify his words that he betrothed her without witnesses. And so wrote the Rosh in a responsum regarding the concubine of Reuven who said, "Reuven betrothed me," that there is nothing in her speech until she says that he betrothed her before witnesses, as written in siman 15, section 32, see there. And there is room for doubt that perhaps only regarding a concubine did the Rosh rule so, but a man, and all the more so a talmid chacham who knows that there is no kiddushin without witnesses, if he said "I betrothed you" without specification, presumably he spoke according to the law of kiddushin and he is not believed to say afterward that it was without witnesses. And so it is implied from the Rambam and Shulchan Aruch who wrote without specification, "One who says: I betrothed you," and if we say that without specification he can say that his intention was not with witnesses, how could they leave their words unspecified? And in the Gemara [65a] as well, the Shas did not explain so, but rather because if not so, we would ask the witnesses. [And on the contrary, from the difficulty of Rava there it is proven that even without specification we attribute it to kiddushin according to the law, see there and examine carefully]. [And what is written in the Rambam and Shulchan Aruch section 5, "All of these etc. when he claimed etc. witnesses etc." will be explained with the help of Heaven].

When he says, "I have betrothed her," he is forbidden to her relatives even if witnesses come and contradict him, for in any place where a person makes a thing a prohibited piece upon himself, he is more believed regarding himself than a hundred witnesses. This is as was written in Yoreh Deah siman 1 regarding a shochet who said, "I did not slaughter this animal," and witnesses contradict him; nevertheless, it is forbidden for him to eat from it because he has made it a prohibited piece upon himself. And so one of the early authorities ruled regarding a captive woman who said, "I am defiled," and witnesses contradict her, that she is believed to forbid herself to a kohen. However, if he retracted and admits to the words of the witnesses, even though in any other place a retraction is not effective without a plausible explanation, nevertheless, in this case where witnesses contradict him, his retraction is effective even without a plausible explanation.

And similarly, a woman who said to someone, "You betrothed me," and he says, "I did not betroth you" – he is permitted to her relatives and she is forbidden to his relatives, and this is when they die, for while they are alive this law is not found at all; for before he divorced her, she is forbidden to every man even if not to his relatives, and after he divorced her, he is also forbidden to her relatives because of the get, as will be explained. And only if she died is he permitted to her relatives, and if he died, she is forbidden to his relatives.

He says, "I betrothed you," and she says, "You did not betroth me, but rather you betrothed my daughter"—he is forbidden to the relatives of the mother for the reason that has been explained, and the mother is permitted to his relatives as we have written, and he is permitted to the relatives of the daughter and the daughter is permitted to his relatives, for the mother is not believed regarding the daughter; only the father is believed to forbid his daughter, as the Torah gave him authority as it is written, "I gave my daughter to this man," and not to the mother. Furthermore, even the father is only believed regarding a ketannah or a naarah and not regarding a bogeret, and even by rabbinic enactment they did not believe the mother to forbid her daughter based on her word. And conversely, when he says, "I betrothed your daughter," and she says, "You betrothed only me"—he is forbidden to the relatives of the daughter and the daughter is permitted to his relatives, and he is permitted to the relatives of the mother and the mother is forbidden to his relatives for the reason of "he has made himself a forbidden thing."

There is a doubt when one says, "I betrothed your daughter," which forbids him to the daughter's relatives, whether this is specifically when he says he betrothed her with a Torah betrothal, such as when she is a bogeret, or even a ketannah provided he says he betrothed her through her father and the father died or went to a distant land, but when he says he only betrothed her through her mother or her brothers, which is a rabbinic betrothal, he is not forbidden to her relatives; or perhaps even with a rabbinic betrothal he is forbidden to her relatives – and this appears to be the primary view, for the reason of "he makes himself a forbidden piece" is because a person is believed regarding himself more than a hundred witnesses; if so, what difference does it make to me if it is a Torah law or a rabbinic law.

The Rambam and the Shulchan Aruch wrote: All these who claim kiddushin—it is when the claimant claims that there were witnesses there and they went to another country or died, but if they admitted that the kiddushin was without two witnesses, there is no kiddushin here. Thus far their words. The explanation of the matters: For initially they said "kiddushin" without specification, but it is upon the beit din to investigate and inquire how the kiddushin occurred, and for this, if he or she said that there were witnesses and they went away, they have made it a prohibited matter, and if they admitted that it was without witnesses, there is no kiddushin here [and it is well so that the inference of the first clause does not contradict the latter clause], and according to this, it is like the "some say" in section 2 that one is believed to clarify one's words; however, it can be said that this is specifically the woman, or the man if he is an am ha'aretz, but regarding a talmid chakham it is like contradicting his words, for he knows that there is no kiddushin without witnesses, as was written there. It can also be explained that it refers to the beginning of the matters, for in most cases of such a denial where this one says "I betrothed you" and she denies him or vice versa, it is a remote thing that there was not some matter of kiddushin between them, and this one claims there was kiddushin with witnesses and this one says it was without witnesses or vice versa, and for this, if they admitted it was without witnesses—meaning that the one affirming the kiddushin admitted to the one denying that it was without witnesses—there is no kiddushin here; but in a case without specification where this one says "I betrothed you" without specification and this one says "you did not betroth me," it is not dealing with this because it is a remote reality. Nevertheless, if we explain it thus, we hear in any case that in that same session he can clarify his words, for certainly he who says "I betrothed you" must at the beginning of the matters say it without specification, for if he says he betrothed her without witnesses he is not claiming anything, and if he says with witnesses, how can he say afterwards that it was without witnesses? Rather, it is certainly when saying it without specification and she responds that it was without witnesses and he admits to her words, and similarly when she claims and he denies her, and this is the wording "they admitted" that they wrote, meaning that they admitted to one another; behold we have learned that in that same session one can admit to the one denying him in such a case. But if he said without specification "I betrothed you" and she said without specification "he did not betroth me" and they separated, whether he can afterwards clarify his words that it was without witnesses or to find other disqualifications in the kiddushin without a good pretext as to why he erred in this previously when he said "kiddushin" without specification—this is a matter of doubt [and the opinion of the Beit Shmuel, subsection 1, is that he can clarify his words, and it implies in any case, and so it implies from what was written in Shulchan Aruch siman 15 section 30, if we do not distinguish between a woman and another, and however, regarding a woman or one who is not a talmid chakham who can err in the law, certainly he can clarify as was written in section 2].

There is a doubt whether specifically when he said so in beit din, "I betrothed you before witnesses," or she said in beit din, "He betrothed me before witnesses," that they are then forbidden to the relatives and she also requires a get as will be explained; but if they said so before witnesses outside of beit din, they can retract their claims when they come to beit din, according to the law of claims in monetary matters, for whatever one claims outside of beit din is nothing, as is written in Choshen Mishpat siman 80. Or, perhaps a matter of prohibition is different, for in monetary matters a person is prone to not revealing his claim except in beit din, but not in a matter of prohibition. However, this is certain: when he admitted before witnesses with a complete admission that he betrothed her before witnesses, or she admitted with a complete admission even not in beit din—they can no longer retract, for in such a case even in monetary matters the law is so, as is written there in siman 81.

Any place where we said that the woman said to the man, "You betrothed me," and he says, "I did not betroth you," we request of him that he write her a get if he does not wish to marry her, for she will be forbidden to the entire world. To compel him to give a get is not within our power, for he denies her. And to compel him because of the "attribute of Sodom," in that she benefits and he loses nothing, is also impossible, for he can say that he suffers a loss in this, in that he will be forbidden to her relatives. Therefore, we request of him that he give her a get to permit her, and then he is forbidden to her relatives since he gave her a get; and by writing for her "you were my wife," it is like an admission that she was his wife, and automatically he is forbidden to her relatives. And even if we do not consider it an admission from him, nevertheless the world will say that the sister of a divorcee is permitted [see in the Mordechai, chapter 3 of Kiddushin].

If they did not request of him to give her a get, but rather he was moved of his own accord to give her a get, it is like an admission from him that he betrothed her, and he is obligated to give her a ketubah according to the poskim who hold that an arusah has a ketubah, as was written in siman 55. And thus the Sages, of blessed memory, said [ibid.]: If he gave a get of his own accord, they compel him to give her a ketubah. And according to the Rambam and the Geonim, who hold that an arusah does not have a ketubah, nevertheless, when he wrote her a ketubah, he is certainly obligated to give it to her when he gave a get of his own accord and not when they requested of him. And even though if so, how can he say "I did not betroth you"? This too can be in a place where they write a ketubah and afterwards betroth, and he says that he wrote the ketubah but the kiddushin were not completed [the Maggid Mishneh]. And even in a case where he gave a get of his own accord, if he is a scholar and knows that she is forbidden to the whole world and specified at the time of the get that he is writing it for her so that she will not be an agunah—he does not give a ketubah [ibid.].

But in a case where he says "I betrothed you" and she says "he did not betroth me," we do not request of him to give a get since she is permitted to the world, and from her it is simple that we do not request that she receive a get, for he is not forbidden from taking many wives; and even now, according to the enactment of our teacher, Gershom the Light of the Exile, it appears also that there is no need for a get, since she denies him and he has no wife, he is permitted to marry a wife. However, sometimes she can compel him to give her a get, such as when people refrain from marrying her because of the rumor he spread about her that he betrothed her, she compels him to give her a get. Nevertheless, she is not forbidden to his relatives even after the get, for she cries out that she does not need the get except because of the concern of those who refrain from marrying her, and it is a get that is not required and does not forbid the relatives [Mordechai]; so ruled our teacher, the Rema. And there are those who disagree on this, for it is certain that she is forbidden to the priesthood, and if so, she is also forbidden to the relatives, for if not so, they will say that a divorcee is permitted to the relatives of the divorcer, as not everyone knows that this is a get that is not required by law [ibid.]. And our teacher, the Rema, himself ruled in siman 10 that even if she was not divorced except by force of a mere rumor and she married another and he died or divorced her, she is forbidden to return to the first, and all the more so regarding the prohibition of ervah. And it appears to me that his reason for being lenient here is because here we are dealing with a case where the matter became public that she seeks to be married, and in the way of the world she sent to arrange a match for herself, and everyone knows that she is unattached; rather, in the course of time when she saw that nevertheless they refrain from marrying her because of his speech—for why should another marry a woman about whom one speaks that she is his wife—and even though everyone knows she is permitted by law, nevertheless it is the way of the world not to arrange a match with such a woman. Therefore, it is as if it became public that the get is only for extra caution. Nevertheless, one should not be lenient in practice [see Chelkat Mechokek and Beit Shmuel].

There was an incident involving one who said, "I betrothed my wife's sister in the presence of so-and-so and so-and-so and they went to the provinces overseas, and I betrothed her before I betrothed my wife and I did not divorce her, and she was married to another," and Rabbeinu Tam ruled that he is not believed to forbid his wife's sister to her husband as long as he does not bring witnesses. Furthermore, even if she also says that he betrothed her, she is not believed to forbid herself to her husband as long as she is under him, but if he divorced her, she is forbidden to him because she made herself a forbidden entity upon herself.

And Rabbeinu Tam further ruled regarding this matter that even if he brings witnesses that he betrothed her before he betrothed his wife, nevertheless, if his wife's sister was betrothed in his presence, she is not forbidden to her husband, for it is like one who says "you divorced me," as I wrote at the beginning of siman 17, for if it were not so, she would not have the audacity to accept betrothal from another in his presence. And see what I wrote there, that in this time when there is chutzpah, one should follow this stringently and not leniently. And all this is regarding his wife's sister, but he is forbidden to his wife, for according to his words she is an ervah to him and he is believed regarding himself, and they cannot suspect him that he hates her and wants to forbid her to himself, for behold, he can divorce her whenever he wishes. Therefore, in this time when it is forbidden to divorce against her will after the takkanah of our teacher Gershom Me'or HaGolah, he is not believed to forbid her to himself [ibid.], like one who says of his wife that she committed adultery, which will be explained in siman 115, see there [and it requires further study, for even before the takkanah, perhaps his intention was to exempt her from her ketubah, for which he has no migo that he could divorce her].