Q&A: Witnesses for the Validity of the Matter
Witnesses for the Validity of the Matter
Question
Hello Rabbi,
In the first lesson in the series Jewish Law and משפט you mentioned the claim of the Pnei Yehoshua that witnesses to kiddushin have a constitutive role and do not merely testify about the act by which the woman is acquired. That is, a woman whom I betrothed in front of one witness is not a married woman, even though one witness is believed in matters of prohibition. I wanted to ask about that: if so, why is an item that I picked up in front of one witness considered mine? After all, in both cases there are social consequences and it affects others, and in both cases I am, as it were, acquiring the thing (the woman or the found item) from the public as a whole.
Answer
In matters of personal status, because of the great significance involved, validation is required for every legal act. In ordinary property law, there is already a general validation: whoever picks up an object in the proper way acquires it. From that point on, only evidentiary testimony is needed that this indeed happened, and not witnesses for the validity of the matter.
By the way, Rabbi Shimon Shkop discusses the question of why witnesses for the validity of the matter are not required in monetary law, since matters of forbidden sexual relationships are also derived by the verbal analogy of “matter-matter” from monetary law.
Discussion on Answer
I said that, indeed, from logic alone there would be room to compare them. But we have a received tradition from the Talmud that in matters of forbidden sexual relationships, witnesses for the validity of the matter are required. What I did was only to suggest an explanation for that fact.
Why not say that in personal-status matters too, whoever betroths a woman through one of the recognized modes of acquisition of a woman has acquired her, and the witnesses are required only to testify that the acquisition took place? In other words, if there are no witnesses testifying that it happened, then the woman should retain her original presumption of status, namely that she is unmarried. So what is the reason to distinguish between witnesses for kiddushin and testimony on a monetary document?