Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Summer Issue

30-18 Sivan-Elul 5767

June-September 16-1, 2007

Vol.16 No.34

Frivolous Wedding Ceremonies - Part 2

by Rabbi Chaim Jachter

Introduction

Last week, we began discussing the topic of frivolous wedding ceremonies. We focused on a case that Rav Mendel Senderovic (Teshuvot Atzei Besamim number 22) adjudicated in 2004. It involved a nearly-thirteen year old girl saying to a nearly-fourteen year old boy that if he truly loved the other nearly-thirteen year old girl who was standing next to her, he should marry her. The girl gave the boy a bottle cap to use for the "betrothal" and he handed it to the other girl without uttering a word. Only one other boy saw this event, and he claimed to be sure only that he saw the girl holding the bottle cap but was not sure if he heard the other girl's statement, "If you love her, marry her" and the handing of the bottle cap from the boy to the girl.

This week, we shall complete our review of the various facets of this case, which not only provide insight into how Poskim adjudicate regrettable cases of frivolous wedding ceremonies, but also present a fascinating opportunity to explore the nuances of many of the Halachot regarding Kiddushin. We must emphasize, as we did last week, that these types of incidents can have horrific results (such as the requirement of a Get) and that if such a situation arises, a Rav must be informed so that the case will be presented to a Gadol for adjudication.

The Bottle Cap's Lack of Value

We noted last week that one cannot simply dismiss this case due to lack of intent on the part of the boy and/or girl to be married. One also cannot simply assert that the ceremony was invalid due to the bottle cap's lack of monetary worth. Indeed, a fundamental law of Kiddushin is that the item used for Kiddushin must be worth a Perutah (Kiddushin 2a). In fact, the common practice of Mesadrei Kiddushin (rabbinical wedding officiators) is to clarify under the Chuppah that the ring to be used has a value of at least a Perutah (Rama Even HaEzer 31:2).

Nevertheless, the Gemara (Kiddushin 12a) presents the opinion of Shemuel that if one uses an item that was worth less than a Perutah in one's locale, we must still be concerned that perhaps that item is worth a Perutah somewhere else. Although Rav Chisda disagrees with Shemuel's opinion, the Shulchan Aruch (E.H. 31:2) rules in accordance with Shemuel, as do almost all Rishonim. Thus, a couple who used an item that was worth less than a Peruath is considered Safeik Mekudeshet (possibly married) and would require another Kiddushin if the partners wish to be married to each other (Shulchan Aruch ad. loc. number 4) or a Get if they wish to marry others. The Beit Shemuel (31:11) and Aruch HaShulchan (E.H. 31:18) argue that the mainstream opinion among the Rishonim is that the requirement of the Get is only rabbinic in nature, as on a Biblical level there is no concern for the item being worth a Perutah elsewhere.

In our case, although a bottle cap is not worth a Perutah in the United States, it might be worth a Perutah in an undeveloped country. Accordingly, we cannot permit the couple to remarry without the benefit of a Get on the basis that the bottle cap is not worth a Perutah. Rav Senderovic, though, cites the Aruch HaShulchan's (E.H. 31:18) suggestion that if the item appears to be something that would be worthless anywhere in the world, the marriage should be invalid. Thus, one could argue that our "ceremony" was invalid because a bottle cap is most likely worth less than a Perutah anywhere in the world. The Aruch HaShulchan, though, expresses hesitancy about this point, probably because of the lack of evidence for this distinction in earlier sources. We may add that nonetheless this idea might be especially cogent in modern times, because the value of an item throughout the world can be determined with relative ease. If research indicates that the bottle cap is worthless worldwide, the ceremony would be invalid even on a rabbinic level. Rav Senderovic uses the Aruch HaShulchan's suggestion as a consideration for a lenient ruling. Poskim who adjudicate these regrettable cases are strongly inclined to amass many considerations for a lenient ruling (see, for example, Teshuvot Noda BeYehudah 2:E.H. 75 cited in Pitchei Teshuva E.H. 42:6 and Teshuvot Igrot Moshe E.H. 1:82).

Omission of Harei At Mekudeshet Li

We are familiar with the practice of a Chatan to say "Harei At Mekudeshet Li BeTabaat Zu KeDat Moshe VeYisrael," "Behold you are betrothed to me with this ring in accordance with the laws of Moshe and Israel" before he presents the ring to his Kallah (Shulchan Aruch chapter 27). In our case, the boy was silent. The only words expressed were the other girl's statement, "If you love her, marry her." However, the Rama (E.H. 27:1) notes that the Kiddushin is valid even if the Chatan does not address the Kallah if marriage is spoken about in her presence (Asukim BeOto Inyan, see Kiddushin 6a). The question, though, is who must speak in order for the marriage to be valid. The Taz (ad. loc. number two) writes that the Chatan must be the speaker in order for the marriage to be valid. However, the Otzar HaPoskim (27:15:2) cites authorities who rule that the marriage is valid even if the husband is not the speaker. Moreover, even though the sole witness is unsure if he heard the girl's statement, the Aruch HaShulchan (E.H. 27:17) raises the possibility that the witnesses might not be required to hear the statement made in the presence of the Kallah. It is possible, he asserts, that it is sufficient for the witness simply to see the delivery of the item from the Chatan to Kallah. Although these disputes are not resolved and the boy's omission of the statement is insufficient basis to invalidate the ceremony, it does provide another consideration to support a lenient ruling.

These disputes hinge to a great extent on the role of the marriage statement. If the statement (Amirah) is an essential component of the wedding ceremony (as Rashi Kiddushin 5b s.v. Hachi KaAmar seems to indicate), the Chatan is required to make the statement himself, and the witnesses must hear it. If, however, the statement merely serves the purpose of clarifying that the delivery of the item from boy to girl is for the purpose of marriage (as the Ran, 1b in the pages of the Rif s.v. Tannu Rabbanan seems to imply), it might not be necessary for the Chatan to make the statement or the witnesses to hear it. For further discussion of the role of Amirah for Kiddushin, see the Shiur on this topic that appears at Yeshivat Har Etzion's Virtual Beit Midrash.

Ownership of the Ring

Another potential lenient approach (rejected by Rav Senderovic) is that a basic Halacha regarding a wedding is that the ring must belong to the Chatan (Shulchan Aruch E.H. chapter 28). In fact, Mesadrei Kiddushin commonly ask the Chatan whether he owns the ring (as opposed to it being borrowed). If the Chatan forgot to bring a proper wedding ring, the Mesadeir Kiddushin will insure that the "lender" will transfer title to the ring to the Chatan with proper Kinyanim (Halachic means of conveyance). Accordingly, the "ceremony" in our case would appear to be invalid since the bottle cap did not belong to the boy.

On the other hand, the Rosh (Kiddushin 1:20) asserts that if the "lender" knows that the "borrower" intends to use the ring for the purpose of Kiddushin, one may assume (Anan Sahadi) that he presents the ring as a gift and not a loan, since he knows that Kiddushin can be accomplished only with a ring that belongs to the Chatan. The Rosh is codified by the Shulchan Aruch (E.H. 28:19) and is applied by the Mishnah Berurah (649:15) in the context of borrowing a Lulav on the first (and possibly the second) day of Sukkot (on which the Lulav must belong to the person who is attempting to fulfill the Mitzvah with it). Accordingly, the bottle cap may have belonged to the boy, since the girl transferred title of the bottle cap to the boy for the purpose of Kiddushin.

On the other hand, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:90) argues (in the context of adjudicating a case of a frivolous marriage ceremony) that the Rosh's Anan Sahadi does not apply to our context, as the overwhelming majority of people (Rav Moshe wrote this in the United States in 1949) are not aware of the requirement for the Chatan to own the ring. Moreover, in the context of a joke Kiddushin there is no Anan Sahadi that the "lender" wished to transfer title to the ring in order to insure the validity of the Kiddushin. In such a context, argues Rav Moshe, it is reasonable to assume that the lender specifically wished to insure that the Kiddushin would be invalid.

Even if we are unsure if the lender understood that the couple was not serious, explains Rav Moshe, there exists no Anan Sahadi that the lender transferred title of the ring to the boy. Rav Moshe asserts that the concept of Anan Sahadi can apply only where there is relative certainty. (He makes a similar assertion in Teshuvot Igrot Moshe E.H. 1:76-77; for further discussion and a list of Poskim who agree and disagree with this assertion, see my Gray Matter 1:72.)

Moreover, perhaps one could argue that the fact that another male was not summoned to serve as the second witness to the "betrothal" demonstrates that the couple and the other girl were not seeking to create a valid Kiddushin. Thus, following the approach of Rav Moshe Feinstein, it seems that one may assume that the girl did not transfer title of the bottle cap to the boy.

Rav Senderovic, however, cogently argues that Rav Moshe's 1949 responsum is not relevant in our context due to a fundamental distinction between the cases. Rav Moshe speaks of transferring title to a ring that one wishes to have returned to him. In that case, one may assume that one who is not learned would not be transferring title to the item as opposed to simply lending it. However, in our case the girl gave the boy an item (the bottle cap) that she has no interest in having returned to her (due to its lack of worth). Thus, there is no reason not to assume that the girl transferred title of the bottle cap of the boy, even if she was unaware of the requirement for the ring to belong to a Chatan.

Rav Senderovic cites Tosafot (Gittin 20b s.v. Ishah, commenting on the Gemara's discussion of the requirement that the husband own the Get he is using to divorce his wife) as a precedent to make such a distinction. The Gemara explores whether one may assume that the wife transferred title of her writing tablet on which the Get was written to the husband. The Gemara suggests that one might assume that the woman was not aware of the need to transfer title of the tablet to the husband, since she presumably is not aware of the requirement that the Get belong to the husband. Tosafot, in turn, explain that this concern applies to items that one normally lends. A woman certainly intends to transfer title of a gift that she does not respect to be returned to her.

Accordingly, we have seen that the arguments that the boy and girl lacked intent to marry and that the boy did not own the bottle cap are not valid justifications to invalidate this "wedding ceremony." However, the Chatan's omission of Harei At (or some other equivalent language) and the fact that the bottle cap seems not to be worth a Perutah are legitimate but independently insufficient considerations to rule that the Kiddushin was invalid.

One Witness at a Wedding

One might wonder why this incident constituted any problem whatsoever if there was only one witness at the "ceremony." There is a fundamental requirement for two witnesses at a wedding based on the principle Ein Davar SheBeErvah Pachot MiShenayim (two witnesses are necessary to alter one's marital status, Gittin 2b). Accordingly, it is surprising to discover that the Gemara (Kiddushin 65a-b) discusses the possibility of a marriage being valid even if there is only one witness present.

The Gemara first cites Shemuel, who insists (as we would expect) that if there was only one witness at the Kiddushin, the marriage is invalid, and then proceeds to cite Rav Yehuda, who is unsure about this point. After the Gemara discusses the matter further (and suggests and rejects three proofs that we must be concerned for one witness), it queries, "Mai Havah Alah," "What is the final resolution of this matter?" The response is that the matter is not resolved, since Rav Kahana rules in accordance with Shemuel and Rav Papa rules in accordance with Rav Yehuda.

The simplest explanation for why there would be concern for a marriage ceremony when there is only one witness is that this is a stringency imposed by rabbinic law, as Biblical law clearly requires a minimum of two witnesses for the Kiddushin to be valid. Indeed, the Otzar HaPoskim (42:21:2) presents a long list of Acharonim who rule that even Rav Papa believes that this is only a rabbinic stringency (although some Poskim believe this to be a Biblical level concern). For further explanation for Rav Papa's opinion, see Aruch HaShulchan (Even HaEzer 42:20) and Otzar HaPoskim (42:21:1).

The Rishonim are divided as to how to resolve this dispute. The Tur (E.H. 42) states, as the primary opinion, that the betrothal ceremony is invalid, but he cites the Smag (positive Mitzvot 48) who rules that since the Gemara did not resolve the issue, we must rule strictly. The Beit Yosef (ad. loc. s.v. HaMekadeish) cites the Rambam (Hilchot Ishut 4:6), Rif (Kiddushin 28a) and Rosh (Kiddushin 3:13) who rule that the Kiddushin is invalid. The Otzar HaPoskim (42:2:18) cites a very long list of Rishonim who agree with this view. Indeed, the Noda BeYehuda (E.H.2:75, cited in the Pitchei Teshuva E.H. 42:6) observes that the overwhelming majority of Poskim rule that such a ceremony is invalid. However, the Beit Yosef also cites the Smag's strict opinion. The Smag cites the Sefer Yereiim (Amud Arayot number 7) as a precedent for his ruling.

This matter is not fully resolved in the Shulchan Aruch either. The Mechabeir (E.H. 42:2) and Vilna Gaon (Beiur HaGra (E.H. 42:9) rule in accordance with the opinion that the Kiddushin is invalid. The Rama (ad. loc.), however, notes that there are some opinions who are strict about this matter. The Rama concludes that it is proper to be strict (i.e. require a Get) except in extraordinary circumstances. The Rama's opinion is accepted by Ashkenazic Jews as authoritative (Aruch HaShulchan ad. loc.). Thus, in a case I dealt with involving the wife of a recalcitrant husband who refused to give a Get but whose wedding ceremony was seen only by non-observant Jews with one exception, Rav Gedaliah Schwartz (the Av Beit Din of the Beth Din of America) ruled that she may remarry without a Get. However, if the husband had been cooperative, a Get would have been required in order to satisfy the strict opinions.

Accordingly, there is reason to require a Get despite the absence of a second witness in our case. However, the Noda BeYehuda (ad. loc.) and Rav Akiva Eiger (Teshuvot 2:55) rule that a Get would not be required if only one person witnessed the Kiddushin if there is an additional substantive doubt as to the validity of the Kiddushin. The Otzar HaPoskim (42:21:4) cites a long list of Acharonim who agree.

A basis for this approach is that in such a case there exists a Sefeik Sefeika (double doubt). Perhaps a betrothal ceremony conducted in the presence of only one witness is invalid, and the additional substantive doubt would constitute the second prong of the Sefeik Sefeika. Another approach is that since (according to most Acharonim) even those who rule strictly regarding one witness do so only on a rabbinic level, if another Safeik exists one may rule leniently due to the general principle of Safeik DeRabbanan LeKula (one may rule leniently in case of doubt regarding a matter of rabbinic law).

On this basis, Rav Senderovic rules that the boy and girl in our case do not require a Get. He notes that there are in fact three doubts in addition to the Safeik as to whether Kiddushin is valid if only one witness was present. One Safeik is whether the bottle cap is worth a Perutah. Secondly, perhaps the omission of a statement from the boy invalidates the Kiddushin. The third doubt is whether the witness ever saw the delivery of the bottle cap. Accordingly, Rav Senderovic rules that the boy and girl do not require a Get.

Minor Status of the Boy, Girl and Witness

Rav Senderovic proposes another lenient consideration to further his ruling. He notes the basic Halacha that the Chatan, Kallah and witnesses must be adults in order for the Kiddushin to be valid (Shulchan Aruch E.H. 43:1). One might think that this should not be a lenient consideration in our case, since the boy and witness were both nearly fourteen and the girl was nearly thirteen. However, one is not considered an adult according to Halacha merely upon reaching age twelve or thirteen. Physical maturity in the expression of the appearance of two pubic hairs is the determining factor. We generally say that one becomes an adult at Bar or Bat Mitzvah since Rava articulates a principle (referred to as Chazakah DeRava, Niddah 48b) that one may assume that the two hairs have appeared by the age of Bar or Bat Mitzvah.

Poskim (Magen Avraham 39:1, Mishnah Berurah 271:3 and Aruch HaShulchan 199:4) caution, however, that we may rely on Chazakah DeRava only in cases of rabbinic requirements. However, in regards to Biblical requirements we may not rely on this assumption. Thus, we permit a Bar Mitzvah boy to serve as the Sheliach Tzibbur because the Sheliach Tzibbur executes responsibilities (e.g. Chazarat HaShatz) that are of rabbinic nature. However, such a person cannot serve as a witness to a wedding or Get, recite Kiddush on behalf of adults or adjust a knot of one's Tefillin Shel Rosh until it is evident that he has shown signs of physical maturity (see, for example, Shulchan Aruch E.H. 141:25 and Choshen Mishpat 35:1). This is because we harbor a doubt as to whether the individual is among the minority of people who has reached the age of Bar or Bat Mitzvah but has not yet physically matured.

Accordingly, if either the boy, witness or girl was not physically mature, the "ceremony" would be invalid. Although this is certainly insufficient grounds to justify a lenient ruling, it might serve as an additional consideration to support a lenient decision. Rav Senderovic, however, suggests that this may not constitute a valid consideration since it might only be a rabbinic law that for Biblical matters we do not rely on Chazakah DeRava. In other words, it is possible that on a Biblical level we do rely on the fact that the majority of those who have reached the age of Bar or Bat Mitzvah have attained physical maturity. Thus, it is questionable as to whether this consideration can be marshaled as legitimate ancillary support for a lenient ruling.

Conclusion

Rav Senderovic was able to reach a lenient conclusion due to a fortunate confluence of factors: the presence of only one witness, the possibility that the witness did not see the handing over of the bottle cap, the possibility that the bottle cap may not have been worth a Perutah and the omission of a statement by the boy before his delivery of the bottle cap.

Although this highly regrettable event had a happy ending due to a combination of fortunate circumstances, many similar situations require Gittin. Even though at first glance it may seem far-fetched to attach any validity to such frivolous ceremonies, Halacha is actually quite stringent when it comes to matters of personal status. Poskim are averse to risking violation of these Halachot, which are of paramount importance. We should all, in turn, take marriage very seriously and never even contemplate engaging in such ugly behavior. Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:84) even urges the caretakers of the youngsters involved in such an incident to punish them for their behavior despite his ruling that no Get was necessary in that specific case. If such a situation does occur, a Rav must be consulted to present the case to a Gadol to adjudicate.