(2001/5761)
Masechet Kiddushin outlines three ways a man can marry a woman. The simplest way is for the man to say, הרי את מקודשת לי, and to give the woman something worth at least a פרוטה. The Masechet also presents the option of sending an agent to marry a woman on one’s behalf. A young Israeli woman recently posed the following question: Because her father was on military duty, he could not attend his own Chuppa, so he sent his friend to wed his wife on his behalf. However, instead of the agent saying, הרי את מקודשת לפלוני, “You are hereby betrothed to him,” he said, הרי את מקודשת לי, “You are hereby betrothed to me.” The daughter asked if her parents had violated אשת איש, and if she was therefore a ממזרת. This question is treated by Rav Shmuel David (Rav of Afula) in the eighteenth volume of the Israeli Torah journal Techumin.
At first glance this seems to be a simple case: If a man says to a woman הרי את מקודשת לי and gives her something, the woman is considered married. Even if one party had in mind to marry a different person, their thoughts are mere דברים שבלב and the Gemara (Kiddushin 49b) states, דברים שבלב אינם דברים (unarticulated thoughts are Halachically meaningless). On the surface it seems that the girl’s parents were engaged in an adulterous relationship, as her mother was wed to her father’s agent, and any offspring should be ממזרים.
The Maharam MiRutenburg states the following in a responsum (number 993):
If Reuven marries Leah by means of throwing the Kiddushin into her lap, and she shakes it off within תוך כדי דיבור (immediately), she is married to him. The reason for this is because in this case witnesses heard Leah say that she wants to marry Reuven, Reuven responded that he shall do so, and she did not object. Even though she threw the Kiddushin off her lap, it is quite possible that initially she accepted it לשם קידושין. Even if she thought that this act was merely a joke, the rule is that דברים שבלב אינם דברים. Even if you say that this was אנן סהדי (obvious to all) that she was merely joking, regarding Kiddushin, because of the stringency of אשת איש (the severe sin of adultery), we do not rely on an אומדנא (assumption) that she was thinking otherwise. One cannot argue that in this case there is an אומדנא דמוכח (strong assumption) that she did not want to marry this man because one may say that she wished to be married to anybody, based on the Gemara’s assertion, טב למיתב דו מלמיתב ארמלו, “a woman prefers to be married, even to a marginal husband, than to not be married” (Kiddushin 41a).
The Rama codifies this responsum in Even Haezer 42:1. Accordingly, in our case it would seem that the woman would actually be married to the substitute Chatan since דברים שבלב אינם דברים. Thus, the couple would need a Get, and any offspring of this woman and any man other than the substitute Chatan would be ממזרים.
However, the Maharam did not completely reject the idea of אומדנא. In our case, the woman had initiated the ceremony to marry the supposed husband. Why would she even want to marry the substitute husband if she had someone else to marry? In the case of the Maharam MiRutenburg, it is possible that the woman truly did not have any other options. However, in our case she did have a Chatan ready and willing to marry her! A proof for this is that the woman was never alone with the substitute husband, and as soon as the supposed husband returned, he was alone with her. In our case, the Maharam and Rama may say that there is an אומדנא דמוכח, and thus she would not be married to the substitute. We may cite the Chazon Ish (Even Haezer 52:3) as a proof for this approach. The Chazon Ish writes:
It seems that there is no general rule that an אומדנא דמוכח is irrelevant in all cases involving אשת איש. The Gemara never presents such a rule, nor did the Bait Din of the Maharam MiRutenburg articulate such a rule. The Maharam’s merely intends to say that one may not rely on the presumption that the woman did not want to get married in the specific case he addressed because in the case of the Maharam there was no אומדנא דמוכח that she did not intend to marry. However, were there to be an unambiguous אומדנא דמוכח, then she would definitely not be married.
The Chazon Ish says that he saw a different opinion in a different Sefer (he may be referring to the Aruch Hashulchan Even Haezer 42:7-8), which says:
Even though we generally say that דברים שבלב אינם דברים, if it were obvious that her intentions were not serious then דברים שבלב הוה דברים. Yet, the Rama did not say this. Rather, the Rama is teaching that we do not follow an אומדנא because of the stringency of אשת איש, and this case would result in a ספק קידושין.
The Aruch Hashulchan concludes by saying
the following:
Based on what the Rama did not say, namely that there would be a ספק קידושין, it can be extrapolated that even if an אומדנא דמוכח exists that the couple did not intend to marry, the man and woman would definitely be married. The general rule regarding Gittin and Kiddushin is that we do not follow an אומדנא, even an אומדנא דמוכח, be it for a stringency or a leniency, for by Gittin and Kiddushin we only follow that which is revealed and not mere thoughts. This is even true when it is obvious to all that the thought is the opposite of the action taken.
Our case, then, would appear to hinge on the dispute between the Chazon Ish and Aruch Hashulchan: may we rely on the assumption that she did not intend to marry the substitute? The following Teshuva was written by Chief Sephardic Rabbi Ben Zion Uziel (תשובות משפטי עוזיאל, Even Haezer 49) regarding someone who lied and said he was married to a woman in order to obtain a passport:
For Kiddushin, a man must have in mind that he is acquiring the woman for the purpose of a relationship and that he is making her forbidden to all other men. The woman must have in mind that she is marrying and will be forbidden to all other men. If they do not each have these intentions, then they are not married. A proof for this assertion is the Rama’s ruling in a case where witnesses see a man and a woman through a window engaged in an act of Kiddushin but the couple is oblivious to the witnesses. Even if the witnesses hear that the woman accepted something לשם קידושין (for the purposes of betrothal), the woman can still say that she was unaware of the witnesses and she did not intend to marry. Based on the Rama’s ruling, we see that if it is obvious that the woman was not serious, she is not married. However, one may disagree with this approach since in the Rama’s case the witnesses were in “hiding,” and there is an action (i.e., the hiding of the witnesses) that supports her contention that she was not serious.
There are, however, more considerations to rule leniently in our case, first, the Acharonim write that if the woman was מוסר מודעא (sent notice) that she was marrying only as a joke, the marriage is void according to all opinions, since there was an action taken before the marriage to demonstrate that the marriage was not authentic. In our case it was clear whom the woman was to marry, since the intended husband’s name appeared on the invitations. The invitation constitutes a valid מסירת מודעא (public notice).
We must also consider that in our case the substitute intended to marry the woman on behalf of the real husband. In a responsum regarding a case of a marriage where the man stated that he was merely joking, the Terumat Hadeshen (no. 212) writes that the couple is married because perhaps the man was serious for a moment and subsequently changed his mind. In our case, however, it is absolutely clear that the substitute did not have any intention of marrying her.
Another relevant issue is קידושי טעות (fraudulent marriage). In our case, the substitute’s Kiddushin seems to constitute a קידושי טעות since neither he nor she had the intention to be married to each other. A support for this is that subsequent to the Kiddushin she lived with the supposed husband. This Kiddushin was clearly קידושי טעות, and the substitute is not married to the woman.
One must also consider the issue of the validity of the witnesses to this Kiddushin. Kiddushin requires clear testimony. The Aruch Hashulchan (Even Haezer 42:12) writes:
If the witnesses do not realize that the Kiddushin is a joke, even if it is an אומדנא דמוכח that the man and woman did not have intentions to be wed to one another, it constitutes דברים שבלב and דברים שבלב אינם דברים. However, if the witnesses see explicitly that the Kiddushin was only done as a joke then they are definitely not married.
Rav Moshe Feinstein (Teshuvot Igrot Moshe Even
Haezer 1:73) expounds on this idea:
During the Kiddushin process, the witnesses must witness every relevant detail — that the man and woman wish to marry, that she accepted something with a value of a פרוטה from him, etc. However, if the witnesses are in doubt about something they see, the witnesses have not testified properly on everything. The purpose of witnesses is to verify that the marriage, in all aspects, was conducted truthfully and properly. Thus, if they are unsure of something then this is clear, in which case she is not married, even if they both had the proper intentions, since it is considered a Kiddushin without witnesses.
We see that the witnesses are crucial. If the witnesses think that the woman is joking, the couple is not married. If the witnesses think that she is serious, the couple is married since דברים שבלב אינם דברים. Thus, in our case, either the witnesses realized that the substitute husband was merely a substitute for the real husband and they should not be married, or the witnesses did not recognize the substitute, in which case their testimony was incomplete since they did not know who was doing the Kiddushin, and therefore their testimony is not acceptable for Kiddushin.
Based on the Gemara (Bava Batra 48b) and a Teshuva of Rav Ovadia Yosef (Yabia Omer 3:Even Haezer 20), one can say that in our case the Kiddushin is not תופסים מדאורייתא (effective on a biblical level) since she did not want to marry the substitute husband. When she accepted the Kiddushin, she was thinking about marrying the real husband, and it did not cross her mind to be married to the substitute, in which case the rabbis might declare the marriage to be null and void.
In conclusion, Sephardic Chief Rabbis Rav Eliyahu Bakshi Doron and Rav Mordechai Eliyahu, as well as Rav Aharon Lichtenstein, ruled that the woman in our case is not married to the real husband, since there was no action of Kiddushin on his part. She is also not married to the substitute husband since it was clear that both he and she had no intention of marrying one another. Furthermore, the witnesses appear to be invalid. Thus, the daughter of the supposed husband is not a ממזרת. We see from this case how detailed Kiddushin is and why it is so important that it be done properly. We also learn that one should not make conveniences when it comes to issues such as Kiddushin because of the potential problems that may arise. Moreover, young men and women should never conduct a mock wedding as this may require a Get and might create tragic consequences in the future.