Shabbat Parashat Mishpatim 5786

Ask the Rabbi: Witness Complication at a Wedding

Question: I was a witness at a wedding years ago and have been unsure if I did the right thing. After the chupa, the kalla’s father (=kf), a learned but somewhat erratic person, came over and told me that he too had in mind to serve as a witness. I did not know if he was serious and ignored him. Could this have compromised the kiddushin, and should I do something now?  

Answer: Before explaining, we assure you that you should do nothing now.

A mishna (Makkot 5b) derives that if one of the members of a group of witnesses (=eidim) is pasul (invalid to serve), so is the testimony of its kosher members. The gemara (ibid. 6a) is bothered by the implication that events at which kosher and pasul (including relatives) eidim are together could not be halachically confirmed. The gemara provides a guideline: we ask if the people “came to see or to testify.” In other words, if they came to testify, there would be no testimony. Kf was apparently aware of this concept and was suggesting that your testimony, which was needed to effectuate the kiddushin (Kiddushin 65b), was pasul.

However, it is highly unlikely that this was a problem. Rishonim ask that if the presence of relatives pasuls kosher witnesses, what do we do at weddings? Tosafot (ad loc.) posits that just seeing an event does not turn an observer into an eid, which would happen only if he testified in beit din. Since this did not happen in your case, Tosafot would justify your inaction. The Shulchan Aruch (Choshen Mishpat 36:4) cites two opinions, with a preference toward the opinion that argues on Tosafot.

The Rosh (Makkot 1:11) says that even when pasul eidim would invalidate the function of kosher witnesses at the point of observation, if the kosher witnesses were appointed eidim, their status is unaffected by others. (A critical question, subject to machloket, is when one of the appointed eidim was pasul, whether kosher observers at the wedding can effectuate the kiddushin. This is beyond our scope – see Otzar Haposkim, Even Haezer 42:31.) Since here too, you and your co-witness were appointed (as is standard), the Rosh would also have you ignore kf’s provocation.

Another approach in Tosafot (ibid.) is that the gemara’s asking about the eidim’s intention refers not to the pasul eidim but to the kosher ones. Specifically, we ask the kosher eidim whether they intended to join a witness group with the pasul ones or to remain separate. Since you did not intend to be eidim with kf, what he intended is irrelevant.

There is an approach that explains that we are not concerned at weddings because we assume that relatives do not intend to be witnesses (see Shach, CM 36:8). Kf seems to say that this wedding was a problematic exception. Apparently, though, even one who relies somewhat on the pasul observer’s intention also accepts at least one of the previous distinctions (see ibid.), which do help in your case.

It is also not clear that we should trust kf that he intended to be an eid when there are no indications other than his word (and after all he is pasul for this too) that this is the case (see Ramban, Makkot 6a; Shach, CM 36:5). It is also difficult to understand exactly what he was saying about his intention and to put it in halachic perspective – did he actually plan to testify, did he just mean to cause a problem, and would that amorphous idea qualify? Did he have a real reason to disqualify the wedding? If he did, wouldn’t he have sat down with the mesader kiddushin or the couple and explained himself? It is far more likely that he was trying to be “cute” or trying to get under your skin.

In summary, even if kf tried to disqualify the kiddushin, he almost definitely did not and could not do so. If it were so easy, any of the many relative guests at anyone’s wedding could, and Halacha does not want us to start worrying about that. While kf did say something unusual, a passing comment to you is definitely not enough for us to start worrying about it. Now, when the marriage is an established fact, it would be a big mistake to sow doubt about it.

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