Siman 49

Our sages, of blessed memory, said [Yevamot 118b]: One who betrothed one of five women and does not know which one he betrothed, and each one says "he betrothed me," if he desires, he may take them all according to the law of the Torah, as it is within his power to marry many women. And if he does not wish to marry them all [Rashi], he gives a get to each and every one and is forbidden to the relatives of all of them, and he places one ketubah between them and departs. And they either divide it among themselves or wait until one of them clarifies that she is the one he betrothed. And this is like the law of a deposit explained in Choshen Mishpat siman 300, where this one says "I am the owner of the deposit" and this one says "I am the owner of the deposit" when they deposited it without his knowledge, that he places the deposit between them and departs. And even though when they deposited it with his knowledge he is obligated to give to each and every one because he was negligent, as he should have been precise as to who the owner of the deposit was, and here too it is obvious that he should have been precise as to which woman he betrothed; nevertheless, here it is like "they did not claim from him" explained there, that he does not need to pay both of them even if he wishes to fulfill his obligation toward Heaven, because he has an excuse to say "it did not enter my mind that another would come to claim the deposit" [Sma subsection 12]. And all the more so in this case he can say "it did not enter my mind that another woman would say 'he betrothed me,'" and he is exempt even to fulfill his obligation toward Heaven [it appears to me]. And that which he is liable there when they claimed from him is because he was negligent, as he should have known that a deposit can last a long time and he would forget who the owner of the deposit was, and he should have written the name of the owner of the deposit [ibid.]. But regarding a woman this is not applicable, and it is analogous to a purchase explained there in siman 222, that he places it between them and departs [it appears to me, and so it seems in Yevamot ibid., and examine it closely].

And this is when he betrothed with money or with a document and the document was lost, but if he betrothed through sexual intercourse, which is a rabbinic prohibition to betroth through sexual intercourse as written in siman 26, and each one says "he betrothed me" – the sages penalized him such that he must give a ketubah to each and every one. For since he performed a prohibited act and disgraced them by betrothing them through sexual intercourse, he must extricate himself from the transgression and give to all of them [Rashi]. And it is an example of robbery, as was explained there in siman 365 regarding one who robbed one of five and does not know which one, and each one says "he robbed me," where he pays each and every one because of the penalty for performing a prohibited act. And even though there it is a Torah prohibition and here it is a rabbinic prohibition – there is no distinction in this; and furthermore, here he disgraced them with betrothal through sexual intercourse.

And there is one who raised a difficulty: behold, regarding theft it was explained there that each one must swear, so why do all the women take without an oath? For behold, our sages, of blessed memory, compared kiddushin via intercourse to theft. And there is one who says that the reason is that behold, if he had claimed with certainty that he betrothed this specific one, he would swear against the rest and be exempt; and since he claims "perhaps," and he is obligated in a Torah oath because he admits to one of them, he becomes "obligated in an oath and unable to swear" and must pay. This is not the case regarding theft, where the sages enacted that the victim of theft swears and takes. However, this is not within the category of "since he is unable to swear, he pays," for behold, it is certain that aside from one ketubah he is not liable, and furthermore, four of them are certainly deceivers. However, in truth it is not comparable, for here he is forced to give a get to each one, and since he gives a get he is forced to also give the ketubah. Furthermore, an oath is not applicable here as it is in theft where each one claims money; here they are not claiming a ketubah, but rather that he should marry them, and he does not desire them and divorces them, and automatically he must give a ketubah.

There is one who says that if his desire is to take one of them, he is exempt from giving a ketubah to the remaining ones, for it is like "I have a maneh in your hand" and the other says "I do not know," where he is exempt from paying as is written in Choshen Mishpat siman 75. For granted, when his desire is not to take one of them, it is not similar to there, for behold he knows that he is liable to one; but when he desires to take one of them, it is exactly similar to this. However, the poskim did not mention this at all, and it also implies the opposite from what we wrote in section 1, and therefore it appears to me that even in such a case he is liable. For behold, regarding coming to fulfill his obligation toward Heaven, even in "I do not know" he is liable as is written there, and it is only by the law of the beit din that there is no ability to obligate him. And here, behold, it is not by the letter of the law but merely a knas, and since by the laws of Heaven even there he is liable, all the more so here that we should obligate him by the law of a knas. Furthermore, since he is obligated to give a get by the letter of the law, he is automatically obligated to give a ketubah as well, as has been written.

Regarding that which the Sages obligated to give them a ketubah, it is well-settled according to the opinion of the poskim who hold that an arusah has a ketubah; however, according to the one who holds that she does not have a ketubah, what is the relevance of a ketubah here? Therefore, the Rambam, of blessed memory, wrote in chapter 9 that here we are dealing with a case where it is known that he wrote a ketubah for her but the ketubah was lost, for if it were not lost, it would be known from the ketubah which one he betrothed; or that there are witnesses that he stipulated to give her a ketubah, for then he is obligated even if he did not write it for her [Ra'avad]; or that they performed a kinyan from his hand to give a ketubah; or that the ketubah is intact but the name of the woman is not mentioned in the ketubah, or that their names are identical [Maggid Mishneh].

The Tur also wrote for example where the ketubah was lost, and according to his view in siman 55 that an arusah has a ketubah, he did not need this; therefore, some say that even according to those who hold that an arusah has a ketubah, nevertheless, since this is only a fine because he betrothed through bi'ah, the sages only fined him when he wrote for one of them [Derishah u-Perishah], but it does not appear so from all the poskim [Beit Shmuel], and the Tur relied on what he wrote there, and it comes to teach us that even though here each one claims "I lost the ketubah," and a claim of loss is a poor claim, for regarding a document that was lost and found we do not return it to the lender as is written in Choshen Mishpat siman 65, and all the more so here where four of them are certainly lying, nevertheless, since it is a fine – the sages fined him even in such a case.

One who betroths a woman and immediately recanted and said that the money shall be a gift, even within the time of a speech — his recantation is nothing and she requires a get, for regarding kiddushin, recantation within the time of a speech is not effective for the act of kiddushin itself, as was written in siman 38. And some say that even to be stringent we do not say that it is like the speech itself [ibid. in the name of the Rivash], and there are those who disagree on this as was written there in section 51, see there, and later in siman 141, section 141.

Our sages, of blessed memory, said [6a]: Anyone who is not expert in the nature of gittin and kiddushin should have no involvement with them to issue rulings regarding them, for he can easily err and permit a forbidden relation, causing an increase of mamzerim in Israel. Some say that specifically to issue rulings is forbidden, but the arrangement of kiddushin is permitted since there is no ruling there, and only in the arrangement of gittin, which has many chapters, is it forbidden to arrange unless he knows the nature of gittin [Taz]. And some say that even the arrangement of kiddushin should not be arranged ab initio by one who does not know the laws of kiddushin [Shevut Yaakov]. And they wrote that it is an enactment from the early Geonim of France in the days of Rabbeinu Tam that no man shall arrange kiddushin except for one who was chosen as a Rav and teacher in the community [Pitchei Teshuvah in the name of Knesset Yechezkel]. And in a place where there is a Rav of the city, no other can arrange kiddushin even if he is a Torah scholar, unless the Rav gives him permission [see Noda BiYehudah, Second Edition, Even HaEzer, siman 82].