A few points I probably should have shared last time, from AH Even Ha-Ezer 42.

What We Know, Regardless of Law

First, in se’if nineteen AH brings up a topic we often avoid for its distastefulness, a wife having had an affair. Although halachah requires such a marriage to end, we might think the need for two witnesses, as for every davar she-be-ervah, matter of sexuality, would allow a husband to stay with his wife even if he walked in on her and another man in flagrante delicto. Without two witnesses, perhaps, he is not obligated to act on what he knows, and divorce her.

AH rejects the idea. Two witnesses are for the legal system to know and accept as fact, the need to end a marriage after adultery has to do with knowledge of the woman’s physical act. Should the husband know she consummated a relationship with someone else—seeing it himself included—he may not stay with her.

[Where a wife “confesses” an affair, I believe a beit din would advise the husband, if he wants the marriage to continue, for any of the myriad reasons marriages survive challenges, to disbelieve her. Where he saw the affair, he cannot disbelieve.]

Se’if 22 offers another example of personal knowledge trumping legal rulings. Should one or both of a couple claim they had kiddushin in front of two witnesses, the person (or people) who said so will have to act as if it is true, even if the witnesses themselves deny it ever happened. The people who said it did happen will not be able to marry prohibited relatives of the person they say they married (such as a brother of the groom, sister of the bride), the woman would need a get before she could marry someone else, and so on.

Designating Witnesses

Last time, I made reference to the practice of many rabbis to have the groom declare the sole witnesses to the kiddushin. In se’if thirty-one, AH explains the preference. First, the people with easy line of sight to the ceremony are generally relatives and therefore not halachically able to serve as witnesses; without naming witnesses, there might not be anyone able to serve that halachic role.

In addition, some authorities understand passages in Makkot to group anyone who sees an event at once as one kat, one group, for testimony, and halachah clearly invalidates the whole group if one member was not allowed to be a witness. The groom naming witnesses (or the rabbi, says AH, if the groom is too busy or too embarrassed to choose some attendees over others, insight into the fraught process of delegating honors at a wedding), avoids the problem. (AH also says the custom was for the chazzan and shamash be the witnesses, since they were already up there at the chuppah. Imagine if weddings today generally had the caterer serve as one of the edim!)

One more interesting point, se’if thirty-two says the witnesses must know this woman is the intended bride. If they did not, and the supposed bride later denies it was her, we believe her.

[It seems so farfetched, yet I once saw a responsum of R. Moshe Feinstein, zt”l, who was asked about exactly such a case, a young woman claimed she had never married the father of her unborn child, where he produced documentation they had in fact married! From the responsum, it seemed clear to R. Feinstein this husband had gotten some other woman, who looked very vaguely like the supposed bride, to go before a court and marry under the mother’s name, etc.

Oh, what a tangled web we weave, when first we practice to deceive. There, I’ve now quoted Sir Walter Scott!]

Problematic Witnesses

Starting at se’if forty, AH takes up witnesses who were pesulim mi-derabbanan, rabbinically invalid (such as inveterate gamblers) or safek pesulim de-oraita, possibly invalid for a reason of Torah law. If the couple wants to stay together, it’s easy, they reperform the ceremony. Should they have decided to split, Rambam required a get mi-safek, a bill of divorce in case there had been a legal marriage.

We would require her to accept the get even if she denied the marriage had occurred (losing her the option of marrying a kohen), and she would also need to account for another marriage she entered into before the get for this one. A married woman who accepts kiddushin from another man has done nothing with halachic meaning, where this woman would need to treat both marriages as possibly valid.

In such a situation, by the way, we would not allow her to divorce the second husband and stay with the first, AH says, because it looks too much like she had been married to the first, ended that marriage, married the second and now is going back to the first (a violation of a verse in the Torah). We do not want to foster even the impression such might happen.

Divrei Sofrim, A Persistent Problem

The definition of rabbinically invalid gives a chance to remember a quirk of how Rambam expressed himself in Mishneh Torah. AH in se’if forty-three stresses we mean these witnesses acted in a way Chazal decided would render them unacceptable. Rambam had said that relatives through the mother are invalid as a matter of divrei sofrim, most literally translated “the words of the scribes.” Presumably, Rambam was saying this is a Rabbinic invalidation.

However, the term sparked a centuries-long debate about Rambam’s intent, throughout Mishneh Torah; here, AH is sure it means only the idea was not explicit in the Torah, but was still certainly a matter of Torah law. Another example, not too far from our current topic, is that Rambam used the term for kiddushei kessef, betrothal effectuated with money (a ring), raising the possibility he thought almost all marriages we know are “only” rabbinically created.

In contrast to AH’s certainty, Beit Shemuel did know of a view that maternal relatives are in fact invalid only as a matter of rabbinic law.

Arayot, a Possible Special Case

Starting at se’if forty-eight, AH discusses the possible reliance on a witness who himself commits sexual sins. He is an halachic rasha, usually preventing him from being a witness, but Rif took the sin to be so tempting, succumbing does not make one a rasha. Rashi seems to have gone the other way, the suspicion of a Jew violating such laws would lead a court to disregard any information he shares on any matter of marriage, divorce, or even the death of a husband.

Beit Shemuel thinks Chazal extended the category to include someone who is mityached with arayot, allows himself to be secluded with women prohibited to him. [Not to lay out loopholes for sinners, but I do think we do well to remember a man is not yet an arayot sinner if he had relations with an unmarried woman not related to him, who has gone to mikveh. There are many possibilities for what sins are transgressed with nonmarital, non-niddah sex, but it’s not arayot.]

What Makes Us Think There Was Effective Repentance

In the last se’if of the chapter, AH raises the question of repentance. Rema had reported a debate about whether we must consider the possibility that Biblical evildoers—such as forced converts to another religion, who now present, e.g., as Christian—have repented, meaning we might have to treat them as able to provide halachic witness. AH says the greatest later authorities dd not think it a debate, it all depends on what we see.

If we have indications the Jew wishes to escape the authorities keeping him in the new religion, is trying to get back to Jewish observance, we worry his conversion was insincere, he was never a rasha, was still able to serve as a witness. Or, we have to worry he was meharher teshuvah, had penitent thoughts, enough to restore his ability to serve as a witness.

The same applies to forced converts who keep mitzvot in private, their observance evidence they are still attached to proper faith.

AH says it is not an issue in his time, because the kings of nations are malchei chessed, rule kindly (and don’t force conversion, he means, an example of what I’ve noticed a few times, his consistent interest in placating the Jewish or non-Jewish governmental censors checking his work). In such times, anyone who has converted to another religion has made his own poor choice, and we need not make room for the possibility of repentance.

This might seem to contradict another halachah, if a man betroths a woman on the condition that he is fully righteous, we think the two might be betrothed, because he might have repented and is now, indeed, very momentarily a tzaddik gamur. Why not entertain the same possibility here? Because there, he brought it up of his own volition, says AH.

So much for marriage, for now. Next week, writing legal documents.

Adapted from articles previously published on Torah Musings