Q&A: Levirate Marriage Requires Witnesses
Levirate Marriage Requires Witnesses
Question
Hello Rabbi. There is a dispute among the medieval authorities about whether levirate marriage requires witnesses or not. As I understand it, the explanation for the dispute is whether levirate marriage is an act of acquisition or a state of affairs that brings the acquisition into effect. According to the view that levirate marriage is an act of acquisition, how can it take effect even unintentionally or under coercion? An act of acquisition requires intent, doesn’t it?
Thank you
Answer
These formulations don’t tell me very much, although I’ve heard them before too. I think the simplest way is to connect it to the question whether this is like betrothal, which requires witnesses, or whether it is something else, like marriage for example, which in the simple sense does not require witnesses.
The concept of "acquisition" that you mention is not well defined. First, an acquisition does not require witnesses. If you lifted or pulled something, you acquired it even if there were no witnesses. Second, an acquisition is not necessarily the purchase of something, but an act that brings a legal effect into force. Betrothal is called an acquisition even though the woman is not acquired by her husband. Divorce is a legal effect, and nevertheless it takes effect even against the woman’s will. In inheritance, you acquire something even if you do not want it and the deceased does not want it.
So don’t box yourself into these formulaic definitions, because it isn’t helpful. It just locks your thinking in place.
Discussion on Answer
Say whatever you want.
Alright, so instead of the term "acquisition" I’ll use the term "act." Where do we find an act that brings about a legal effect without the intent of the person doing it? In other words, you could say that here the Torah introduced a novelty that this is how it works, but why not say that this is a state of affairs, like the wedding canopy or death, which are realities that bring about a legal effect? What reason is there to say that this is an act?