Wednesday, November 26, 2008

Kiddushin 50a - Eidim on her acceptance of kiddushin

The Avnei Miluim (27:6) says a tremendous chiddush based on our gemara. The gemara tries to prove that devarim sh'bleiv einam devarim from our mishna where she claims to have accepted in her heart at the time of the kiddushin that even if he is not a kohen, she wants to marry him. From the fact that she is not mikudeshes must be because devarim sh'bleiv einam devarim. The gemara pushes this off that maybe she can't use devarim sh'bleiv to uproot a t'nai that was verbally articulated, but normally we will allow devarim sh'bleiv. Why doesn't the gemara say that even if devarim sh'bleiv is significant, the witnesses aren't able to know what she is thinking and it is like kiddushin that is not in the present of witnesses, so she is not mikudeshes? From the fact that the gemara is not concerned about the witnesses seeing her consent implies that the witnesses only have to know that he intends to do kiddushin and see the ma'aseh kiddushin. But they do not have to know that she consents to the kiddushin. The rationale for this is based on the Ran in nedarim 30a that a woman's role in kiddushin is passive, and is simply to allow him to take her. Therefore, her consent is not part of the "davar sh'berva" aspect of kiddushin, and does not need witnesses. Based on this, if she would make a legitimate claim that would not violate the concern of devarim sh'bleiv, even without the knowledge of the eidim, she would be mikudeshes.
R' Moshe (Even H'aezer 1:82) explains that the eidei kiddushin have to be sure that they witnessed an act of kiddushin. His discussion is a case where 2 teenagers were fooling around about kiddushin, and the eidim witnessed a full ma'aseh kiddushin but were convinced that it wasn't intended to be a real kiddushin, so he is matir. However, in his case both of them were just clowning around. 
Based on R' Moshe and the Avnei Miluim - If the case would have been that the man intended for kiddushin and she was just clowning around, and the eidim say that they are sure he intended for kiddushin but have no idea what her intent was (meaning, they admit to the real possibility of not knowing that she consented to the kiddushin) - the avenei miluim would say that since we only need eidim on him and not her, this qualifies as eidim on the kiddushin even if she claims to have been just clowning around.

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