(2007/5767)
Occasionally, one hears about a situation in which a young man “marries” a young woman in a frivolous wedding ceremony. These ceremonies, however, can have horrific consequences, as Halacha might regard these ceremonies as valid. Indeed, in some cases a Get would be required, perhaps just to be on the safe side. Tragically, this would preclude the woman from marrying a Kohen (see Rama Even HaEzer 6:1) and would stain the reputation of the young man.
Poskim have dealt with such regrettable situations in the past, and the literature is summarized in the Pitchei Teshuva (Even HaEzer 42:5-6) and Otzar HaPoskim (volume 13, pages 11-26 in the 5740 edition). In this series of essays, we shall a present a case that was adjudicated in 2004 by Rav Mendel Senderovic (the Rosh Kollel of the Milwaukee Kollel; he is a prominent Halachic authority, especially regarding matters of personal status) which appears in his collection of responsa (Teshuvot Atzei Besamim number 22). A full presentation of this case and Rav Senderovic’s decision will elucidate many fundamental issues in regard to both Kiddushin in general and the manner in which Poskim deal with frivolous marriage ceremonies. Rav Yisrael Reisman’s essay on this topic that appears in Yeshiva Torah VaDaath’s “HaMetivta” (5764, pages 352-354) was helpful in the preparation of this essay.
Needless to say, it is vitally important to stress that no one should ever engage in such reckless behavior that may stain his or her reputation for life. If any situation does arise, the case must be presented to a Rav of eminent stature for a ruling.
The Case
The situation dealt with by Rav Senderovic involved a group of three boys who were nearly fourteen years old and two girls nearly thirteen years old. The group was standing around, whereupon two of the boys left the group. One of the two girls said to the remaining boy that if he loves the other girl, he should marry her, and she gave him a bottle cap to use for the “ceremony.” He took the bottle cap and gave it to the other girl, who kept the bottle cap without casting it away. Meanwhile, one of the other boys returned and saw the bottle cap in the girl’s hand, but was unsure whether he had heard the girl say, “If you love her, marry her” and witnessed the delivery of the bottle cap. (Rav Senderovic heard testimony about this case two years after it occurred).
Lack of Intent
One could be tempted to invalidate this “ceremony” due to the lack of Daat (intention) to marry. Daat is a basic element of creating a valid ceremony, as is evident in many passages in Masechet Kiddushin (see, for example, Kiddushin 2b, 7b and 10a; also see Chidushei Rabbeinu Chaim HaLevi Soloveitchik to the Rambam Hilchot Yibum VeChalitza 4:16 and Rav Shimon Shkop’s Shaarei Yosher 7:12 for a full analysis of the requirement for Daat for Kiddushin). Thus, one would be tempted to say that since this couple lacked Daat to marry, the ceremony is invalid and no Get is required.
However, Halacha does not make this assumption easily, as is demonstrated in a case that was adjudicated by the Maharam of Rothenberg (Teshuvot number 993, cited by the Hagahot Maimoniot at the conclusion of the Rambam’s Hilchot Ishut, the Mordechai to Kiddushin number 548 and the Beit Yosef Even HaEzer 42). The case involved a woman who instructed a man to marry her. The man, in turn, threw an item into her lap, whereupon she immediately threw the item away. The woman explained that her words were intended as a mere joke. The Maharam ruled that she is married and would require a Get to marry another man. The Rama (Even HaEzer 42:1) rules in accordance with the Maharam, and none of the commentaries challenge this ruling.
Devarim SheBeLeiv and Umdena DeMuchach
A bit of discussion is necessary to explain this ruling. The Gemara (Kiddushin 49b) presents a fundamental rule that applies to many areas of Halacha: Devarim SheBeLeiv Einam Devarim, thoughts that are not articulated are meaningless. Tosafot (ad. loc. s.v. Devarim) add, though, that if there is an “Umdena DeMuchach,” something so obvious that there is no need to state it explicitly, there is no need to articulate a stipulation in order for the thought to be meaningful.
As an example, Tosafot present a case in which someone presumed that he had no children and therefore gave his entire estate to someone outside of his family. He subsequently discovered that his child was alive. Even though the donor did not explicitly stipulate that his gift was valid on condition that he did not discover that his child was alive, the gift is nullified upon discovering that his child is living. It is obvious (there is an Umdena DeMuchach) that had he known that the child was living, he would never have gifted his entire estate to a non-family member.
In the case of the Maharam of Rothenberg, the woman in question is considered to be married as an application of the rule of Devarim SheBeLeiv Einam Devarim. The woman did not issue a disclaimer (Mesirat Modaah) before she received the ring explaining that she was merely joking and did not intend to marry. Based on Yevamot 118b and Bava Kama 111a, the Maharam explains that since some women are satisfied with a marginal husband (for further explanation and discussion of this presumption, see my Gray Matter 1:43), there is no Umdena DeMuchach that in this case she was joking. The Rama adds, in what appears to be a sweeping statement, that we do not consider Umdenot (presumptions) and other evidence that would indicate that the couple did not intend to be married.
The Chazon Ish and the Aruch HaShulchan
The scope of the Rama’s statement is somewhat unclear. The Aruch HaShulchan (E.H. 42:7-8) interprets the Rama as making a very broad statement that the rules regarding an Umdena Demuchach do not apply at all in the context of marriage and divorce. He notes that the Rama does not say that the couple is considered to be only possibly married (Safeik Mekudeshet) or married only according to rabbinic law, but rather rules that they are considered married in all respects. He concludes that the Maharam of Rothenberg and the Rama are presenting a very fundamental, all embracing rule that in regards to Gittin and Kiddushin, we always apply the principle of Devarim SheBeLeiv Einam Devarim. We should note, however, that the Aruch HaShulchan seems to contradict this ruling later in his work (E.H. 141:63-64).
The Chazon Ish (E.H. 52:3) adopts a very different approach. He argues that we never find that the Gemara excludes Gittin and Kiddushin from the rules of Umdena DeMuchach. Moreover, we do not have any evidence that the Maharam of Rothenberg and his rabbinic court issued an edict eliminating the Umdena DeMuchach exception in regards to Kiddushin. The Chazon Ish explains that in the specific case addressed by the Maharam of Rothenberg and the Rama, there was no Umdena DeMuchach that the couple did not intend to be married. However, had there been a legitimate Umdena DeMuchach that the couple did not intend to be married, the marriage would not have been valid.
An example of a case in which an Umdena DeMuchach that there was no intention to be married exists is described in a Teshuva written by Rav Shmuel David (the Rav of Afula) that appears in Techumin 18:92-99. In Rav David’s situation, a non-observant Israeli couple was scheduled to be married, with a rabbi from the Israeli rabbinate officiating at the wedding. The groom was unable to attend the wedding and therefore asked a friend to substitute for him at the ceremony (not to act as his agent, but rather to present himself fraudulently to the Rav as the actual groom). The “real husband” and wife later had children, one of whom became observant and wanted to know if she was considered to be a Mamzeret (illegitimate child) in light of the fact that her mother seemed to be married to the substitute Chatan and not her father.
Rav David cites Rav Aharon Lichtenstein, Rav Eliyahu Bakshi Doron and Rav Mordechai Eliyahu, who all ruled that the daughter was not a Mamzeret since the “marriage” between her mother and the substitute Chatan was invalid. One of the considerations to conclude that the marriage was invalid was the fact that there was an Umdena DeMuchach that her mother and the substitute Chatan did not intend to be married to each other. Rav David (Techumin 23:149-157) also issues a lenient ruling regarding a frivolous wedding ceremony.
In our case, however, Rav Senderovic did not feel that this was sufficient reason to rule leniently. First, the dispute between the Aruch HaShulchan and the Chazon Ish seems to be unresolved, as the Otzar HaPoskim (ad. loc.) presents Poskim who agree with the Aruch HaShulchan as well as authorities that agree with the Chazon Ish. Second, in the case that Rav Senderovic adjudicated, there was no Umdena DeMuchach that the couple had no Daat. The 2004 case seemed to be similar to the case of the Maharam of Rothenberg in which there was no Umdena DeMuchach that they did not intend to be married.
Rav Moshe Feinstein’s Compromise
We should note that while Rav Moshe Feinstein (Teshuvot Igrot Moshe 1:84) seems to adopt (for the most part) the approach of the Aruch HaShulchan, he nevertheless presents two limitations on the strict ruling of the Maharam and Rama. First, he asserts (in regards to a case that apparently occurred in the United States and was adjudicated in the summer of 1955) that it appears (based on the Beiur HaGra, E.H. 42:4) that the Rama’s ruling not to rely on a Umdena regarding Kiddushin is a stringency that is imposed only under rabbinic law (but not on a Biblical level). Thus, he reasons that there is no reason to be strict if there was only one witness, because in such a case it is merely a stringency to be concerned that the Kiddushin is valid. Thus, if there was only one witness to the “ceremony” and there is an Umdena DeMuchach that the couple had no intent to be married, no Get is required.
In addition, Rav Moshe (ad. loc. number 82) advocates (in the course of adjudicating a case that occurred in Russia in 1917) an idea that was first suggested by the Aruch HaShulchan (E.H. 42:12). Rav Moshe asserts that if the witnesses are fully aware that there is an Umdena DeMuchach that the couple did not intend to be married, the Kiddushin is not valid. This is not due to lack of intent to be married (regarding which the Maharam and Rama rule that one cannot be lenient) but rather due to the lack of proper witnesses to “ceremony.” Rav Moshe explains that one cannot be considered a witness to a Kiddushin if he harbors serious doubts as to the efficacy of the ceremony. In other words, the Maharam and Rama are strict only if the witnesses do not realize that the ceremony was a joke. The Otzar HaPoskim (ad. loc. pages 19-21) cites prominent Poskim (such as Teshuvot Atzei HaLevanon number 90 and Teshuvot Zekan Aharon number 84) who agree with Rav Moshe. However, it also cites Poskim (such as Rav Kook in Teshuvot Ezrat Kohen number 48) who disagree with Rav Moshe’s approach.
However, these two lenient approaches are not relevant to Rav Senderovic’s case, as there is no Umdena DeMuchach that there was no intent for the couple to be married.
We should note that Rav Moshe (ad. loc.) writes that even if the witnesses merely had a doubt as to whether the couple was joking or had genuine Daat to marry, they are not considered valid witnesses. Rav Moshe asserts that one is not considered a witness if he is uncertain as to what he saw. Hence, even if the witnesses were unsure if the couple was joking, the Kiddushin would be invalid. For a similar approach, see Imrei Yosher ad. loc., Rav Naftali Tropp to Kiddushin 5b, Kehillot Yaakov Kiddushin number 6 and sources quoted in my Gray Matter 1:71-72, especially footnote number 3. Rav Senderovic, however, does not utilize this approach regarding the case he adjudicated.
Next week we shall (IY”H and B”N) continue to present how Rav Senderovic resolved this unfortunate situation.