Joke Kiddushin

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by R. Gidon Rothstein

14 Tammuz: Chatam Sofer on Joke Kiddushin

The pomp with which Jews marry today mean we can be confident the couple involved truly intended to be married. Halachically, however, a kiddushin can occur any time a man gives a woman an item of value and says the required formula in front of two witnesses. Shu”t Chatam Sofer 3; Even Ha-‘Ezer 1;80, dated 14 Tammuz 5579 (1819), teases out factors which could make such a ceremony valid or invalid.

Stringing Together Words

To marry, the man generally says “harei at mekkudeshet li, behold, you are betrothed (or set aside) for me.” (Halachah does accept other formulations, a fact which does not come up in this case.) Here, a young man had said the first three words, harei at mekkudeshet, and an uncle of his had warned him not to say li, to me, to avoid having enacted kiddushin, which makes the woman married to him [and if they divorce, she can then never marry a kohen; the uncle’s intercession seems to make clear the kid was joking around, and the uncle was worried about the very real impact of saying the words.]

In Yiddish, the uncle said three words, “don’t say li,” and the nephew responded either with three or four words, to the effect of, “I will too say li.” One question was whether the pause between his first words, harei at mekkudeshet, and the necessary li, to me, broke up the two, sparing us a valid kiddushin.

In witness testimony, continuous conversation avoids the problem of a break—even if a litigant or judge interrupts the witness, as long as there is no silent break, we view the testimony as one whole (this comes up, for example, where a litigant objects to something the witness said, and the witness explains his words more fully; we do not see the witness as attempting to retract or alter his testimony if it’s all part of one thread of conversation).

Were that true here, the nephew’s later word li would still be connected to the original statement, and kiddushin would seem to have occurred.

Testimony Isn’t Ordinary Speech

Chatam Sofer first says the rule applies only to testimony; elsewhere, a toch kedei dibbur (a very brief amount of time,) separates two parts of a statement even if there was back and forth the whole time. More, even witnesses’ statements are only seen as linked when the witnesses are part of the same testimony.

But were witnesses to say they did not know any testimony (even if they were lying), they have declared themselves separate from each other, since by their claim they have no connection, and they would have no more than a toch kedei dibbur to change it. Many authorities take that view, as codified in Shulchan Aruch, Choshen Mishpat 80;7.

For our case, more than a toch kedei dibbur in the back and forth between uncle and nephew would invalidate the kiddushin, since the nephew’s li came too far after the original harei at. (Chatam Sofer is assuming li is necessary for valid kiddushin, which he’ll question below).

Construing Speech, Timing and Intent

Toch kedei dibbur is no more than four words (the amount of time it takes to respond to a teacher’s greeting by saying, shalom alecha rabbi u-mori, peace be unto you, my teacher and master, four words). Our case had six or seven words—the uncle said “don’t say li,” and the nephew said “I will say li,” freeing us from worry about the one opinion which allowed space for one more word in the time of toch kedei dibbur, to allow the new speaker to start.

[Chatam Sofer does not explain the concept of toch kedei dibbur. I think the idea is that someone in the middle of speaking might be obligated to interrupt themselves to greet their teacher, a four word interruption. Halachah knows of no reason to stop speaking for longer, and takes silence as the end of a speech act, any further speech a new act, not legally linked to the first. There seems to me what to discuss here about accepted speech patterns, although the responsum does not raise any. We are about to see an exception, where a longer interruption does not stop the speech].

Shulchan Aruch Choshen Mishpat 10;29 gives a way to see the nephew’s li as connected back to his original phrase. Where a witness seemed to have finished his testimony and a litigant made a comment or counterclaim, the witness can say, “I wasn’t finished, I meant to say x.”

The additional material cannot contradict his prior testimony (he cannot say, “I meant to add, ‘just joking, never happened’”), but if it elaborates the testimony, adds nuances which might have been intended before he was interrupted, we accept it as part of the original testimony.

For our case, were we to believe the nephew had been about to continue, the uncle’s interruption would not help; it seems to have been clear, however, the nephew in fact meant to stop without saying li. Some of the witnesses claimed he said “I’m going to say li just to annoy you,” which would make clear he did not originally intend to say it.

More, both the nephew and putative bride agree they never meant to marry. Were the ceremony to have happened with no reason to question it—a man/boy said the full formula and gave a woman/girl a ring—we would have to ignore their claim it was a joke, because devarim shebalev einam devarim, claims about intent cannot legally contradict what we see in front of our eyes. In our case, Chatam Sofer says we can take their insistence it was a joke seriously enough to avoid looking for reasons to think his later li was still within the time frame of the original statement.

The Lack of Li

The requirement of li in kiddushin sparks more halachic discussion than we might have assumed. Shulchan Aruch Even Ha-‘Ezer 27 declares a kiddushin lacking li invalid, because the ceremony itself needs to define the man to whom she is being asked to commit (the man presenting the ring could be an agent of another man).

However, Rema notes some who are stringent on the issue, which sends Chatam Sofer on a long discussion of the needed level of clarity for different kinds of legal statements (committing to a voluntary personal fast, deciding to be a nazir, and more). He mentions the idea of a yad, an allusion, which might be considered mochiach, clear enough to define its referent, or eino mochiach, not clear to that level. Harei at mekkudeshet might be a yad ha-mochiach, or we might hold yadayim she-einam mochichot, allusions which do not clinch their case, can still effect kiddushin.

Engagements and Context

The couple’s never having been engaged might help. Even those who think a non-specific yad can create kiddushin, such as Maharit, relied on some other context to support the interpretation, like an engagement. Still, Rema did not require an engagement (some authorities called for censuring a man who marries without first becoming engaged, Rema disagreed), but Chatam Sofer thinks the common custom of his time and place, to have an engagement and then a formal wedding, in a hall, etc., all mean we need not pay attention to what happened here.

He draws added support for his perspective from the witnesses’ certainty the two were not serious. While we cannot trust the “groom” as to his intent (the idea of devarim she-ba-lev, people’s claims about their intent are not part of our halachic read of an event), the witnesses’ perspective establishes the context of an interaction, which halachah does recognize.

(Chatam Sofer adds more evidence they were joking around, such as the nephew’s calling for all the assembled to recite the formula with him, one of the witnesses having said, “if that ring were valuable enough, you’d be married to her,” which shows they didn’t think they were marrying. He concedes he is treading new ground in accepting evidence the couple was not serious—usually, we assume the act itself creates marriage– tells us he is adding it only to support the other avenues of leniency, such as the missing li making the harei at not specific enough to create the connection between them).

I am skipping more analysis of which incomplete formulas might be enough (Rivash thought “hareini noten lach le-kiddushin, I am giving this to you for kiddushin” might identify him as the groom, for example), because Chatam Sofer concludes — and thinks it is the accepted view — the identifier of the groom, li, must be there for kiddushin to occur.

Care In Forming an Opinion

Chatam Sofer begins to discuss another way to say no marriage occurred, the unclear ownership of the ring. The “groom” had grabbed it from a girl standing there, saying he would give it back, and then did (a story the owner of the ring confirms). Depending on how we construe their interaction, he may not have been enough of the owner for kiddushin purposes.

Chatam Sofer at first steps back from this aspect of the discussion, because his correspondent knew of a sefer which discussed the issue, a sefer unavailable to him right then. He says he can rule the marriage is invalid because of the lack of li, of the clear identifier of the man to whom she was being asked to commit.

The good enough reason to invalidate the marriage frees him to think about who owned the ring as well, as perhaps another reason to feel comfortable ignoring this supposed kiddushin [I was surprised at his stepping back from the topic to begin with—he was fifty-seven at this time, an accomplished leading rabbi of his generation, yet the existence of a sefer on a topic made him hesitate to take it up on his own].

When Grabbing Isn’t Stealing

He notes halachah’s presumption, chazakah, people own what’s in their possession, as well as a chazakah people do not steal. This event gave more reason to assume he had not stolen the ring, having occurred at a party on Chol Ha-Mo’ed of a holiday, where people grabbing from each other was part of the festivities. (Tosafot Sukkah 45a knew social circles which accepted people grabbing items from each other and throwing them around, all part of the celebration; not a celebration I would have enjoyed, but to each his/her own).

Of course, the ones taking the items would have to intend to return the item. Once we have two options as to how to interpret an act, either as jocular grabbing with intent to return or theft, we believe the person who says he was doing it in the non-prohibited way. There’s therefore no reason to think the original owner had yeush, despaired of getting it back, and no reason to assume the item had become the property of the supposed groom.

Chatam Sofer refers to a monograph where he demonstrated (at length he says, which means it was pretty long) the error which led people to assume the existence of such a chazakah.

There is an halachic presumption of stability of ownership, objects owned by so and so continue to be owned by so and so until we know of a transfer of property, as long as a state of ownership has been established.

As part of proving his point (and I am skipping much), he notes the Talmudic principle of ha-motzi me-chaveiro ‘alav ha-re’aya, one who wishes to extract an item (or money) from another bears the burden of proof. The principle decidedly does not say, however, the person who has the item is assumed to be the owner, it says the one who wants to change the status quo must prove the point. Similarly, the discovery of a corpse wearing clothing we know belonged to a certain man did not allow the man’s wife to consider herself a widow, because Chazal felt people lend or sell their clothing to others often enough for possession there to be insufficient proof of the identity of the deceased. Possession does not establish ownership.

The bystander girl in our case was the owner of the ring, and the “groom’s” claims about how he took it from her do not make him the owner in a way which could produce kiddushin.

He is not satisfied he has completed the necessary analysis of the topic (which I note because I have left out much of his discussion, yet Chatam Sofer feels he’s not delved deeply enough; it’s a salutary reminder of the continuing question of how fully to cover questions, for halachic decisors and for those who summarize their findings). Still, he thinks he has gathered enough evidence to disregard this kiddushin.

When Heaven Signals Otherwise

In a remarkable coda, Chatam Sofer tells his correspondent the above has all been how he saw the issue when first presented to him. Since then, “Heaven prevented me” from writing this answer for more than ten weeks. Every time he would start, some pressing matter drew him away, for ten days at a time, more than once.

It dragged on enough to convince him he was being told he was not the right person to rule on his question. He’s sharing his thoughts because he thinks they have value as words of Torah, but leaves the decision up to them, whether to accept his reasoning as persuasive or to use some other standard.

It’s a paragraph at the end of a long legal responsum, but inserts a note of faith and belief I think serves an interesting counterweight to the legal process he had been taking his reader through until that point. Confident in his knowledge and reasoning, Chatam Sofer was aware his views might not be the ones Heaven wanted applied to a situation, and was open to being told to back away from ruling.

About Gidon Rothstein

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