The Gemara (Kiddushin 65a; see also Shulchan Aruch, Even HaEzer 42:2) teaches that the act of kiddushin must be performed in front of two eidim [witnesses]:
אמר רב יהודה: המקדש בעד אחד – אין חוששין לקידושיו. בעו מיניה מרב יהודה: שניהם מודים, מאי? אין ולא ורפיא בידיה. איתמר, אמר רב נחמן אמר שמואל: המקדש בעד אחד – אין חוששין לקידושיו, ואפילו שניהם מודים.
R’ Yehudah says: With regard to one who is mekadesh [betroths] another in the presence of one witness, one need not be concerned that his act of kiddushin has taken effect. The talmidim raised a dilemma before R’ Yehudah: If both the man and the woman concede that it was a kiddushin, what is the halachah? Is the kiddushin valid? R’ Yehudah did not provide a clear answer. He said: Yes and no, and the matter was uncertain to him. It was stated that Amora’im discussed this point. R’ Nachman says that Shmuel says: With regard to one who is mekadesh a woman with one witness, one need not be concerned that his act of kiddushin has taken effect, and this is the halachah even if both parties concede that there was an act of kiddushin.
Even if both parties confirm that there was a proper act of kiddushin, the kiddushin is only valid when performed in the presence of two eidim.
The Achronim explain that unlike dinei mamonos, cases of financial matters, the eidim in this case not only testify as to what they saw; their mere presence enables the change of legal status. This is known as “eidus lekiyum hadavar.” Some explain that the kiddushin is only valid if it has the ability to be proven in Beis Din. Others suggest that the presence of eidim, and the public nature of the ceremony, enables the kiddushin to take effect.
Kinyanim Which Require Eidim:
Besides for the actual act of kiddushin, there are a number of other areas where eidim are needed, below is a complete list of the areas that require eidim:
- Eidei kesubah - Two kosher eidim must witness the kinyan of commitment to the kesubah; they sign on the kesubah document. If they are not kosher, the kesubah is posul, as is the case with any monetary shtar [document].
- Eidei kiddushin - The eidei kiddushin must also be kosher eidim. The kiddushin does not take effect without eidim, as there is a rule that “matters concerning ervah cannot be done with less than two [eidim]” (Shulchan Aruch, Even HaEzer 42:2).
- Eidei yichud - The eidei yichud must also be kosher, as they are eidim to the nisu’in. Here too, the eidim are necessary for the kinyan of nisu’in to take effect.
Some use the same pair of eidim for the kesubah and all the parts of the kiddushin and nisu’in (Ezer Mikodesh siman 42; Beis Yitzchak siman 70; and so is the minhag Yerushalayim, see Eidus L’Yisrael pg. 14). Others assign different eidim for each part to make the matter conspicuous and honor the chosson and kallah with many eidim (Shu”t Maharam Mintz siman 109; Maharil Hilchos Nissuin; Nachlas Shivah end of siman 12). Either way, all eidim must be kosher l’chatchilah.
The Responsibilities of the Eidim of Kiddushin
The mesader kiddushin instructs the eidim to pay careful attention to the wedding ceremony. The eidim should examine the ring to determine that it is indeed worth the value of a peruta and that it conforms to the requirements of kiddushei kesef. The eidim must hear the chosson say “harei at mekudeshes” and see the giving of the ring to the woman, as well as her acceptance of the ring.
The Achronim discuss whether the kiddushin is still binding if the eidim did not witness the actual giving of the ring (see Pischei Teshuvah 42:12).
Thoughts of Teshuvah
The Shu”t Maharam Mintz (siman 109) writes: One should choose two kosher eidim based on the rules of Choshen Mishpot, siman 34. The eidim should then have hirhuray teshuvah [thoughts of repentance] in their hearts, as perhaps they committed aveiros which would disqualify them from being kosher eidim.
