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 Need for Kosher Eidim
Throughout the kinyanim of eirusin and nisu’in, some of the kinyanim require kosher eidim. This is critical, as the kinyanim are upheld through the eidim; without them, the kinyanim do not take effect. Thus, one must be very meticulous to find eidim who are kosher according to all opinions. This is the most essential part of the marriage process. It is more essential than having a proper, esteemed mesader kiddushin, as the eidim are a must, whereas the mesader kiddushin is not.
One time, Rav Shlomah Zalman Auerbach was given the honor of being mesader kiddushin. He quickly realized that there was a certain “rabbinic figure” of questionable kashrus who was going to be an eid kiddushin. Rav Shlomah Zalman approached him, saying he did not want to be mesader kiddushin in the presence of such a prominent rabbi, so he was relinquishing that role to the rabbi, and he would instead serve as an eid. And so it was. A true posek forgoes his own honor to ensure a proper, unquestionable outcome.
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).
Kashrut HaEidim – The Qualifications of the Witnesses
Relatives are disqualified for eidus, as stated in Shulchan Aruch (Choshen Mishpot 33:2). This is true whether the eidim are related to each other – on the father’s or the mother’s side – or one of them is related to the chosson’s or kallah’s side. Although the mesader kiddushin must ascertain that the eidim are not relatives, sometimes an eid himself is not aware of his more distant relations, especially when they are through marriage, this is something to be careful about.
The following is a list of the eidim that are disqualified due to being related:
- Rishon b’rishon - Two people who are relatives of the first degree, e.g., two brothers or a father and son, are posul for eidus. This pesul is called “rishon b’rishon.”
- Sheini b’sheini - A “sheini b’sheini” also may not halachically be an eid. Thus, sons of two brothers, i.e., first cousins, are posul for eidus because of sheini b’sheini.
- Shlishi b’shlishi - However, two brothers’ grandsons, i.e., second cousins, are called “shlishi b’shlishi” and are kosher for eidus.
- Rishon b’sheini - A man and his nephew or a man and his grandson are posul as a “rishon b’sheini.”
- Rishon b’shlishi - The poskim argue about a “rishon b’shlishi,” e.g., a man and his great-nephew or a man and his great-grandson. Some say they are kosher (Mechaber); others say they are posul (Rema). It is proper to follow the latter opinion.
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.
- Sheini b’shlishi - First cousins once removed are “sheini b’shlishi” and halachically kosher for eidus (Mechaber).
- Ba’al k’ishto - All pesulim for eidus also apply when that degree of relation is through marriage, since a man’s wife is like him, and a woman’s husband is like her. E.g., if one eid is a first cousin of the second eid’s wife, they are posul to serve as eidim together (Shulchan Aruch, Choshen Mishpot 33:3). People must be careful about this, as people sometimes do not know their cousins through marriage so well and can easily overlook this issue.
Machmir [Stringent] Even for Distant Relatives
Some are machmir not to use someone as an eid even if he is a distant relative who is not halachically posul (Sma, Seder Haget, ois 2). This is also so that people do not falsely claim that the marriage was made through related eidim. Many well-known poskim followed this (R’ Wosner, Kovetz MiBeis HaLevi Vol. 9, pg. 33; R’ Shach, Mevakshei Torah Vol. 27; Keneh Bosom; R’ Tuvia Weiss zt”l)
- Revi’i b’revi’I - Because of this, some are careful not to use a revi’i b’revi’i, i.e., third cousins.
- Chamishi b’chamishi - However, there is no reason whatsoever to be machmir for extremely distant relatives, e.g., chamishi b’chamishi [fourth cousins] or even rishon b’chamishi [e.g., a man and his brother’s great-great-grandson] (Kav Venoki).
Posul for Eidus Due to Financial Interest
Some eidim are posul due to financial interest, i.e., when someone derives benefit from serving as an eid (Choshen Mishpot 37:1). Based on this, the poskim go through various people to determine whether they are posul as eidei kesubah and kiddushin:
- Shadchan - Some are machmir not to use the shadchan as an eid since he has a financial interest (Yismach Lev, Vol. 1, siman 163; Apiryon Shlomah pg. 63 in the name of R’ Yaakov Kamenetsky; Teshuvos HaPoskim in the name of R’ Chaim Kanievsky zt”l). However, others hold he is only posul as long as he was not yet paid, but once he was paid, he is kosher l’chatchilah (Otzar Haposkim 42:65, ois 15 in the name of the Maharit; R’ Elyashiv cited in Mevakshei Torah).
- Mechutan - Strictly speaking, a previous mechutan is kosher for eidus (Shulchan Aruch, Choshen Mishpot 33:6; Rema, Seder Haget 2; Maharshdam, siman 33 and Aruch HaShulchan 5). However, some are careful l’chatchilah not to use a mechutan as an eid kiddushin since it is possible that there is always some financial interest between them even if they became mechutanim a long time ago (Peninei Nisuin pg. 68 in the name of R’ Elyashiv; Kovetz MiBeis HaLevi, Vol. 9, pg. 33).
- Mesader kiddushin - The mesader kiddushin may be an eid kesubah or kiddushin even if he will be paid (Shu”t Binyan Tzion, siman 157).
Posul for Eidus Due to Aveirah
- Desire for money - A person who does aveiros out of desire for money, e.g., someone known to be a thief, is posul de’O’raisa for eidus. A gambler is posul derabanan (Shulchan Aruch, Choshen Mishpot 34:7).
- Rasha - A rasha who knowingly violated a lav from the Torah that all Yidden know is an aveirah and did not do teshuvah is posul for eidus (34:1). However, if it is possible he did it by accident or did not know it was forbidden, he is not even posul derabanan for eidus (Shulchan Aruch 34:2; Shulchan Aruch HaRav, Dinei Eidus Veshtoras, sif 7). For an aveirah that does not get malkus, one is posul miderabanan (Rema, sif 3).
- Suspected of arayos - If someone is even just suspected of arayos, although he is kosher for other eidus, he is posul for marriage-related eidus (Tur Choshen Mishpot, 34:25 and Rema), at least miderabanan (Chelkas Mechokek 45:14; Beis Shmuel 45:20).
Technology
To our great distress, there is a spiritual disaster today with the development of technology. If a person has access to unfiltered internet, it is impossible to know that he isn’t suspected of arayos, particularly if he has any sort of unfiltered smartphone that accompanies him around the clock, including in secluded places. It is almost unavoidable that such a person will see forbidden sights and violate the lav of “לא תקרבו לגלות ערוה,” which includes speech and personal connections with every evil in the world. All the rabbanim worldwide have denounced this and forcefully expressed the obligation to guard one’s neshamah from it.
Thus, if one has a smartphone, it is hard to even know if he is kosher for eidus or not. Even if he has the appearance of a prominent person, talmid chacham, or rosh yeshiva, other people do not know about the stability or health of his neshamah. To our discredit, there is a phenomenon today wherein many people go about with two faces: on the outside, they look like prominent, important people, but in the inside, for multiple hours a day they are rotten and filthy with sin of the lowest levels ... והמבין יבין ... (Chukei Chaim).
Eidim Who Are Esteemed and Talmidei Chachamim
- Talmid chacham - L’chatchilah, one should choose the most esteemed and righteous respected community members as eidim, as they are certainly kosher (Maharam Mintz, siman 109; Siddur Derech HaChaim). They should also be talmidei chachamim, who are assumed kosher for eidus until proven otherwise. In contrast, an am ha’aretz is assumed posul unless it is known that he goes on the proper path (Shulchan Aruch, 34:17).
- Ben Torah - Similarly, l’chatchilah one should choose for eidei kiddushin and nisu’in, bnei Torah who learn Torah all day; minimize involvement with the world outside; and do not have devices forbidden by the chachamim and poskim of the generation.
Yichud HaEidim - Designating Witnesses
The Mishnah (Makkos 5b) teaches that when one member of a group of witnesses (kat eidim) is disqualified from testifying – for example, if he is related to another witness or the subject of the testimony – the entire group of witnesses is disqualified:
ומה שנים נמצא אחד מהן קרוב או פסול – עדותן בטלה ,אף שלשה נמצא אחד מהן קרוב או פסול – עדותן בטלה .מנין אפילו מאה ?תלמוד לומר ״עדים ״ .
Story With the Birchas Shmuel
There is a story with R’ Boruch Ber Lebovitz, the Ba’al Birchas Shmuel, that he was once asked to be a witness for the giving over of a get, and he suddenly remembered that he once borrowed a sefer and he hadn’t yet returned it. R’ Boruch Ber was worried that perhaps he violated the sin of theft, and he was unsettled until he was mekabel on himself to return the sefer as soon as he could. He then had hirhuray teshuvah, and finally agreed to be the eid.
And just as with regard to two witnesses, if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, as it is no longer the testimony of two witnesses, so too, with regard to three witnesses who came to testify as one set – if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, even though two valid witnesses remain. From where is it derived that the same halachah applies even in the case of one hundred witnesses? It is derived from a pasuk, as the pasuk states: “witnesses”.
The Gemara (Makkos 6a) qualifies this statement:
אמר ליה: ״יקום דבר״ – במקימי דבר הכתוב מדבר.
He (Rava) said to him: [It is written: “According to two witnesses or three witnesses] shall a matter be established”; it is with regard to those who establish a matter as legal fact in court that the pasuk is speaking.
Rava explains that the above halachah only applies to eidim who come to testify (mekaymei davar), and not to all witnesses who witnessed the subject of the testimony. Furthermore, the Gemara explains:
אמר רבא: הכי אמרינן להו: למיחזי אתיתו או לאסהודי אתיתו? אי אמרי לאסהודי אתו, נמצא אחד מהן קרוב או פסול – עדותן בטלה, אי אמרי למיחזי אתו, מה יעשו שני אחין שראו באחד שהרג את הנפש?
Rava says: This is what we say to the witnesses who come to the court: Did you come to observe the proceedings, or did you come to testify? If the witnesses say they came to testify, then if one of them is found to be a relative or otherwise disqualified, their entire testimony is voided. If the witnesses say that they came to observe, in that situation, what shall two brothers do in a case in which they saw someone who killed a person? It is certainly unusual for those who witnessed the murder to not even attend the court hearing.
In other words, if an invalid witness is found among witnesses who come to beis din with the intention to testify, the entire group is disqualified.
Machlokes Rishonim If the Above Applies to Matters of Gittin and Kiddushin Aswell
Although the Gemara refers to dinei mamanos [financial matters], some Rishonim raise the following concern regarding gittin and kiddushin as well: If there are relatives present at the giving of the get or at the kiddushin, then should we say that all eidim who witnessed the ceremony are disqualified, in accordance with the principle “if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided”?
Tosfos (Makkos 6a, d.h. Shmuel; see also Rosh 1:11) explains that since the Gemara only applies this rule to witnesses who come to testify in beis din, and not to those who merely witnessed the action, it would not apply to those who witnessed the kiddushin.
The Ritva, (Kiddushin 43a, d.h. Itmar) disagrees. He explains that when the Gemara differentiated between witnesses who come to testify in beis din and those who saw the act, “that referred to monetary and criminal cases, regarding which the testimony is not fulfilled until the witnesses come to beis din... However, for kiddushin, regarding which the testimony does not only come to confirm the act, as even if we know that she was mekudeshes [betrothed], the kiddushin is not valid without testimony... if invalid witnesses join them during the kiddushin, the entire testimony is disqualified.” In other words, the testimony for kiddushin is fundamentally a different type of testimony. It is not to verify that the kiddushin occurred, but rather, “edus lekiyum hadavar,” and therefore, as we mentioned above, if the kiddushin is performed without witnesses, it is not valid.
Although the Ritva does not accept this view, he records that the practice of his rebbe was that “whenever there are valid and invalid witnesses at the (kiddushin) ceremony, it is necessary to designate the eidei kiddushin (i.e. the witnesses for the kiddushin), because if not, since there is an invalid witness among them, the testimony of all of them is disqualified.” By designating witnesses to the exclusion of others, the “kat” of eidim, which does not include disqualified witnesses, is defined.
How Do We Rule
The halachah is in accordance with Tosfos (Rema 42:4). Therefore, there is no need to designate eidim, and even those who did not intend to testify may serve as the eidim (Shulchan Aruch, Choshen Mishpot 36:1; Pischei Teshuvah, Even HaEzer 42:11). However, a number of Achronim (see, for example Radvaz, 2:707; Shach, Choshen Mishpat 36:8; Beis Meir 42:2; Ketzos HaChoshen 36:1) record that it is customary to designate the eidei kiddushin. The Aruch HaShulchan (Even HaEzer 42:31), for example, writes:
It is proper to designate the witnesses for the kiddushin under the chuppah, and it is customary to do so in many holy communities, and it is proper for a number of reasons. First, as those who are at the wedding ceremony are often distracted by the wedding music and they do not witness the actual kiddushin, [witnesses are designated] in order that two witnesses should see the kiddushin. Second, since those standing under the chuppah who see the kiddushin are generally related to each other, and those who are valid eidim generally stand far from the chuppah and do not at all see the kiddushin... therefore, it is proper for the chosson to designate the witnesses. However, in order to spare him this embarrassment and responsibility, it is proper for the officiating rabbi to designate the eidim.
If the eidim were not designated and other people witnessed the kiddushin ceremony, the wedding is still valid.
