“עליו יסף וחמישתו בראשו אשמו את והשיב עשו אשר חטאתם את והתודו” (ז ה) “לו אשם לאשר ונתן”
The Rambam in Hilchos Teshuvah (1 1) explains that one who repents without verbally saying viduy for his sins does not have his sins atoned, because viduy is conditional for the atonement. Many have asked how the Rambam would interpret the words of the Gemara (Kiddushin 49b, and see Rambam Ishus 8 5) that one who is mekadesh a woman on condition that he is a tzaddik gamur, even if he is famed as a total rasha, there is a question as to whether she is mekudeshes, because perhaps he had thoughts of teshuvah in his heart, and it is enough to have regret in one’s heart to go from being a rasha to a tzaddik?
The Minchas Chinuch explains that although according to the Rambam, in order to merit kapparas avonos, a person needs to include viduy in his teshuvah, and as long as he does not do viduy verbally, his sins are not atoned and he will be punished for them, still, if he had thoughts of teshuvah and took upon himself to change his ways, he is now considered a tzaddik even if his sins of the past are not atoned. Therefore, the Gemara says that the kiddushin is possibly valid because perhaps he had thoughts of teshuvah and is now considered a tzaddik, and therefore the condition is fulfilled.
But some differ and hold that the description of tzaddik is conditional on his sins being atoned, and someone whose sins are not atoned, even if he repented, is not called a tzaddik (see Shu”t Shtei Halechem, 31). How is it possible to reconcile their view with the Rambam’s view that a lack of viduy with the mouth delays the atonement, with the words of the Gemara that it is enough to have regret in one’s heart to be called a tzaddik?
The Kli Chemdah explains this based on the words of Chazal (Yoma 26b) that differentiate between the kapparah of one who repents due to fear of punishment, that the sins that he sinned on purpose are considered unintentional because of his teshuvah, and one who repents because of ahavas Hashem, whose sins are transformed to merits. In light of this we can say that the Rambam is referring to one who repents from yirah, and in order to atone for his sins and be called a tzaddik, he has to first do viduy, verbally. But one who repents from ahavah has his sins atoned by virtue of his teshuvah, even before his viduy. And because we have to consider that perhaps one who was mekadesh repented out of love for Hashem, therefore Chazal said that his kiddushin is valid, because of the possibility.
The Dovev Meisharim explains that even if the sins are not atoned without viduy, and even if a person is not called a tzaddik before his sins are atoned, still, when one is mekadesh a wife it is enough to regret in his heart to be called a tzaddik. This is because Chazal say (Yerushalmi Bikkurim 3 3) that one who marries a woman has all his sins forgiven, and therefore, right when the mekadesh thinks of teshuvah, the kiddushin is valid, and with the power of the valid kiddushin, his sins are atoned and he becomes a tzaddik gamur. Even though the kiddushin was conditional on him being a tzaddik and before the kiddushin his sins were not yet atoned, and he is not yet called a tzaddik, still, the Gemara holds that the kiddushin becomes valid at the same time as the kapparah, and therefore the conditions are fulfilled. (The Dovev Meisharim does not specify where he heard this, and see Siach Sarfei Kodesh (Vol. IV 15) who brings this reconciliation in the name of the Kotzker Rebbe.)
Minchas Chinuch 364 1; Kli Chemdah Naso; Shu”t Dovev Meisharim Vol. I, 22
