Shulchan Aruch Even HaEzer 42 has five paragraphs, where Aruch HaShulchan has fifty-one. This time and next, I will try to capture essential points of AH’s presentation, as we figure out what we need to produce a valid kiddushin, the first stage of marital connection.

Consent, Full and Pressured

Within broad agreement on the need for consent, se’ifim 1-3 of AH show a debate about who must consent, to what extent, and why. Rambam required a woman’s sincere consent, thought kiddushin invalid if she was pressured into a marriage, did not wish to marry the man. For the man, he took the opposite view, the kiddushin would still take effect even if he had been pressured, as long as he eventually said yes.

The idea of consent starts with the verse, Devarim 22;13, ki yikach ish ishah, should a man take a woman, presumably of his own free will. Rashi in Yevamot 19b pointed to the Torah’s description of a divorced woman’s remarriage as ve-halechah ve-hayetah le-ish acher, she went and was married to another man, the marriage as voluntary as the going.

The surprise in the ruling comes from an idea from the world of business, talyuha ve-zavin, Choshen Mishpat 205, a sale takes effect even if the seller was pressured until s/he consented. We would think the same here, consent works despite having been extracted. (AH anticipates an objection, the logic applies only to kiddushin with money, because talyuhu ve-zavin referred to financial situations. He argues that marriage was always a financial windfall for the woman, because the husband became obligated to support her.)

The Vilna Gaon explains why Rambam held the man was different, the Gemara was sure people prefer to acquire property rather than sell, so if a pro forma declaration of consent under duress works for sales, it should clearly work for purchases, and the man here is the “purchaser.”

Chazal Step In

Based on a passage in Baba Batra 48b, AH understands Rambam to have seen this as a case of afke’inhu, Chazal nullified the kiddushin because the man (or whoever) was wrong to hassle her. They did not protect the man this way, AH says, because a man has easier options, such as divorce; even after the Cherem Rabbenu Gershom took away his ability to force a divorce, Taz considered our case an exception, a man coerced into marriage may divorce the woman against her will [I assume he would have to prove the duress to the court before they would allow the unilateral divorce].

Other views, summarized in se’if 3, negated a marriage where the man was forced as well, because talyuhu only works for sales, not purchases, as Rema wrote in Choshen Mishpat.

With details I am skipping, we’re saying it is not a marriage without the woman’s willing consent.

Problematic Consent

There are many ways we can wonder about consent, with impact on how we treat the kiddushin. A drowsy or dozing woman—a standard the Gemara raises in a few contexts, where the person can’t think through complex issues, but answers when called, not like waking from sleep--can give valid consent as long as she is not actually asleep.

More complicated is se’if 6, where the woman invited kiddushin, the man threw it into her clothing, and she immediately shook it out, said she had been joking. Superficially, this looks like a case in Siman 30, where a woman’s immediately throwing back what a man gave her (within a toch kedei dibbur, the time it takes a student to greet a teacher), means there is no kiddushin.

There, even if the couple is engaged, her immediate reaction works. Here, she told him to betroth her, prior consent to the act he then performed. It forces us to treat her then giving it back as instant regret or cold feet, which have no halachic effect (a woman who immediately changes her mind after kiddushin is still married, different from many areas of halachah, where a toch kedei dibbur is considered part in the original act, so regret within that frame counts as regret within the original moment).

Jokes Might Be in the Eye of the Beholder

Some authorities only granted these situations the status of safek kiddushin, possible kiddushin, and some did think the woman had a toch kedei dibbur to change her mind. We don’t generally accept those views. Her claim to have been joking also don’t convince us, because, especially with gittin and kiddushin, divorce and marriage, halachah doesn’t follow what seems to be true (these are the topics of umdena, what we surmise, or devarim she-ba-lev, how a person’s thoughts can or cannot have halachic impact), only what we know to be true.

AH in se’if 10 suggests our stringency has to do with the witnesses, essential to the ceremony, who can only testify to what they saw, not what they think or assume. If witnesses saw a kiddushin sincerely entered, we would worry it was, even if both parties, the man and the woman, claim it was a joke. If the witnesses also knew it was a joke, we likely can ignore it, although AH urges careful consideration.

Coercion That Might Work

Our worry her rejection might be regret after consent forces us to suspect there may have been a kiddushin even where he seems to have forced her. Were a couple discussing kiddushin, both pleased with the prospect, and the man suddenly grabbed her hand, put a ring on it, and said the words (harei at mekudeshet li be-taba’at zo ke-dat Moshe ve-Yisrael, behold you are betrothed to me with this ring as per the religion/ rules of Moshe and the Jewish people), Rema sees valid kiddushin unless she immediately threw it away.

Ordinarily, a woman need not react if a man forces something on her. Here, the lead-in discussion gives us reason to think she accepted it in the moment. AH in se’if fifteen questions why this wouldn’t be only a safek kiddushin, a possible kiddushin. He argues, therefore, there must have been some indications she was interested, that he had surprised her with the timing, but she had gone along with it, in the moment.

Coercion That Does Not Work

Their having been in kiddushin discussions/negotiations doesn’t cover all cases, however. In se’ifim 16-17, AH explains Rema’s rejection of a kiddushin where they were discussing marriage, and she asked him to repay a loan he owed her. As he gave her the money, he said the harei at, and she threw the money back. We might have thought that their discussion of marriage would make us suspect she had meant to accept the money and only after changed her mind.

The key difference, in AH’s view, was her calling in the loan. It resets the context for him giving her money, takes it out of the kiddushin realm, unless she accepts his returning it to that frame. [I think I once saw a responsum of Noda Bi-Yehudah, where a man made a purchase in a store, and when given the change by the woman behind the counter, put it back in her hand and said the harei at. She, stunned, didn’t immediately react.]

Two Witnesses

The witnesses to kiddushin, remember, are there le-kiyyum ha-davar, to make the ceremony work. A man and woman could come to court, just the two of them, or even with a third party to back up their story, and tell us they had the most beautiful, romantic kiddushin, just the two of them there, or even them and close relatives, none of whom may serve as witnesses. They are not married, not because we do or do not believe them, but because kiddushin cannot be created without two valid witnesses to see it.

In se’if 17, AH justifies the unusual rule. The Torah uses the word davar regarding divorce, and elsewhere says every davar shall be established with two witnesses, leading the Gemara to say devarim she-be-ervah, matters related to marriage and/or sexuality, require two witnesses. Also, while money transactions do not have to have witnesses, witnesses are necessary where a transaction will impinge on others, as marriage always does. If this couple is married, someone else marrying the woman will not take effect, an affair she has will or will not be adultery, these two will or will not be able to marry the others’ relatives, and so on.

It's easiest to see how we would have witnesses for kiddushei kessef, the ring ceremony we all know so well, or for a shetar, where the betrothal is effectuated by a document (the reverse of a get, a bill of divorce) declaring their new status. For kiddushei bi’ah, where the couple has marital relations to create their first-level connection (frowned upon already in the Gemara, but effective), witnesses who see them go into seclusion to consummate the relationship will count.

The Couple Must Know There Are Witnesses

Because the presence of witnesses is indispensable, the couple also has to know the witnesses are there. Beit Shemuel seems to think this is a blanket rule, were a couple to tell us they intended to marry but says there were no witnesses, and two men show up to say they saw it without the couple realizing it, Beit Shemuel would still consider them unbetrothed. Chelkat Mechokek disagreed, thought the problem was their intention; we will assume they didn’t really want kiddushin if they did it without witnesses. From his perspective, if a couple named witnesses, who turned out to be invalid, but there happened to be other valid witnesses there, the kiddushin would take effect, because we know they wanted it to.

[I was once at a wedding where the ceremony had to be redone, because two brothers came forward to serve as witnesses. According to Chelkat Mechokek, the re-enactment might not have been necessary, since the couple clearly intended to marry. On the other hand, many rabbis have the groom appoint witnesses to the exclusion of all others, in which case this would not help. That marriage eventually broke up, although I doubt it was because of this hiccup.]

There’s more here, and we will need next week to finish this siman, so let’s leave it for now, and come back at it next time.

Adapted from articles previously published on Torah Musings