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In a wedding ceremony, where many different people are present and many people see a wedding ring (or any item worth a shaveh peruta) being given by the man to the woman, do two kosher witnesses need to be uniquely specified as being witnesses?

If no witnesses are specified, but there are certainly two (or more) people that fit the description of a kosher witness and are present, can this be taken as 'testimony'despite there being other non-kosher witnesses (or invalid mixes of kosher witnesses, e.g. relatives) witnessing this event? If no kosher witness-pair is specified,_does the whole group become one witnessing entity that is then invalidated__ by the presence of 'witnesses' who are not kosher, or are kosher witness-pairs within the crowd considered a valid witnessing pair?

This kind of scenario may arise in an irreligious 'wedding party' where some kosher-for-witnessing guests are invited, but the main body of guests are not religious i.e invalid witnesses. In such a wedding party a man may very well give a woman a ring (and vice versa) and declare that he wants to be married to her (as evidenced by the massive party they throw (!) and that they live or will be living together with assumed marital relations). In such a case, are pairs of kosher-witnesses dotted around the room witnessing this, enough to make this marriage valid (albeit in a not le'chatchila manner) despite the passive nature of the eidim?

  • In lomdus you can also ask about other testimonies not kasher, about a man who give kidushin but did not know that testimonies was present, as eydey mesit. Good question – kouty Sep 22 '16 at 3:24
  • As I understand it, if a man gives anything worth more than a prutah to a single woman, announces that he is marrying her (e.g. says "Harei at mekudeshet li......") in the presence of two witnesses, there is a state of de facto marriage. This in fact happened when, as a student on a seminar we got back from the pub one evening and a friend gave his girlfriend a ring with two friends present. To complicate matters he was a cohen. The Rav accompanying the seminar had to work hard to find a source by which he could declare that since they had been drinking, there was no intention so no marriage. – Epicentre Sep 22 '16 at 4:42
  • @Epicentre Why does it complicate matters that he is a Kohein? – Double AA Sep 22 '16 at 23:39
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    @DoubleAA If he had just written her a get instead of getting the kedushin ruled invalid, she would have been asur to marry a kohen. If he was a kohen and wrote her a get, then it would include him in the isur. The OP said she was his girlfriend. That means that they might have wanted to get married when they were older. – sabbahillel Sep 23 '16 at 1:05
  • @DoubleAA - As sabbahillel wrote. – Epicentre Sep 25 '16 at 4:00
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This is from a shiur that my Rav gave which involved a case that he brought up as a participant. As a result, this is from memory.

That is why the Brisker will announce two aidim excluding everyone else. My rav was at a wedding and found out that the two aidim were relatives. He was not able to inform the mesader kedushim (privately) until after after the mesder kedushim made that announcement. The mesader kedushin told my rav and the other two (in a whisper so as not to embarrass anyone) that he and my rav would be the witnesses to the exclusion of anyone else. He then continued with the four of them standing there.

There are people who were told to shut their eyes if they have to go to a Reform wedding just in case the couple get divorced. I believe that was advice from Rav Moshe Feinstein.

I saw a case in Business Halacha newsletter that it is only witnesses who are called to testify that would invalidate the group. Thus, the implication is that the kosher witnesses would be valid if only they are called to testify as to what they saw. However, that fear is the source of the Brisk minhag. This way only the kosher witnesses are allowed to testify.

I also recall a gemara where three people come to testify about the new moon, and one of them is invalid, then bais din can call the two valid witnesses to certify the new moon.

Thanks to @kouty for pointing the link to Shulchan Aruch Choshen Mishpat 36:1 pages 62b to 64b

My paraphrase in English

If a group of aidim (more than two) testify and one of them is pasul or a relative, then the entire testimony is invalidated. This is only in the case were they all intended to testify. However, if the invalid aidim did not intend to testify, then the testimony is valid.

Bais Din checks into the matter by asking if at the time they witnessed the matter they intended to testify in court or just to see what was happening. Bais din then examines those who intended to testify in court. If one of the invalid aidim is in that group then the testimony is invalid.

At the end of that Halacha we see:

Another way of expressing the matter, even if he observed the matter in order to testify, he will not invalidate the testimony unless he actually came to bais din and testified, since bais din only requires two witnesses and they testified.

Rama gives more details and the Mechaber then continues

If the plaintiff has called kosher witnesses to testify, even if the invalid witnesses are present and want to testify, they cannot invalidate the testimony

  • @kouty That is, my rav said that once the announcement (by the mesader kedushim) was made, se he was made the shaliach to ensure that everything was done properly, then it was the equivalent of "אתם עדיי" to the exclusion of everyone else in the room. – sabbahillel Sep 25 '16 at 18:45
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Prerequisite

I will try to explain the problems. first some sources. Shulchan Aruch Choshen Mishpat, Hilchot Edut, 36, stated laws about numerous persons who did testimony and one of them was relative or unfit. But for a better understanding, we will begin from Mishna. Mishna Maccot 1, 7-8:

עַל פִּי שְׁנַיִם עֵדִים אוֹ שְׁלשָׁה עֵדִים יוּמַת הַמֵּת (דברים יז), אִם מִתְקַיֶּמֶת הָעֵדוּת בִּשְׁנַיִם, לָמָּה פָרַט הַכָּתוּב בִּשְׁלשָׁה, ... ‏

A verse says that the testimony recquires two or three witnesses, what must we learn from the word "three"?

מַה שְּׁנַיִם נִמְצָא אַחַד מֵהֶן קָרוֹב אוֹ פָסוּל עֵדוּתָן בְּטֵלָה , אַף שְׁלשָׁה נִמְצָא אֶחָד מֵהֶן קָרוֹב אוֹ פָסוּל, עֵדוּתָן בְּטֵלָה. ‏

As well as if one of two witnesses is parent or unfit, the testimony is rejected, as well, if one of the three is, the testimony is rejected.

מִנַּיִן אֲפִלּוּ מֵאָה, תַּלְמוּד לוֹמַר, עֵדִים. ‏

We learn from the verse that the rule is the same even if the witnesses are hundred and one of them is unfit or relative.

אָמַר רַבִּי יוֹסֵי, בַּמֶּה דְבָרִים אֲמוּרִים, בְּדִינֵי נְפָשׁוֹת. ‏ אֲבָל בְּדִינֵי מָמוֹנוֹת, תִּתְקַיֵּם הָעֵדוּת בַּשְּׁאָר. ‏

Rabbi Yosse limited this rule to cases of criminal affairs, no problem for business law. Rashi explained this following the general halachic tendency to searsh how to avoid death penalty. RI explained that in business one witness alone can change the din, contrarily to criminal affairs which need entire group of two witnesses, this is a sign of weakeness of criminal testimony.

רַבִּי אוֹמֵר, אֶחָד דִּינֵי מָמוֹנוֹת וְאֶחָד דִּינֵי נְפָשׁוֹת. ‏

Rabbi Yehuda Hanassi, rejected Rabbi Yose's restriction.

בִּזְמַן שֶׁהִתְרוּ בָהֶן, אֲבָל בִּזְמַן שֶׁלֹּא הִתְרוּ בָהֶן, מַה יַּעֲשׂוּ שְׁנֵי אַחִין שֶׁרָאוּ בְאֶחָד שֶׁהָרַג אֶת הַנָּפֶשׁ: ‏

Therefore he defined a own restriction concerning the rule application, in cases in which the the Kasher and the unfit witnesses were intentionally together to alert the alleged perpetrator . E.G. if two brothers were witnesses of a assassination scene,, the perpetrator will never be condemned, despite other regular witnesses? If only one of the brothers made the alert (with a third person, also a witness but non relative), in this case his brother will not disturb the testimony. Rashi explained that this last rule is specific to criminal laws ( because the reference to alrrt which is necessary for criminal laws only). The gemara ruled as Rabbi Yehuda Hanassi. The Rosh in responsa 60, 5 said that to testimony is a duty in such a case.

Tosfot asked: For Rabbi Yossi, who doesn't agree with this last restriction, how can we validate testimony on Get, which is public, in presence of relatives? He answered in name of Rabbenu Itschaq that the rules of disqualification are only for witnesses who go to testimony in bet din (making punishment testimony {performative testimony}), but for their presence at time of the action only they don't disqualify. He rad th wordscof Rabbi Yehuda in the Mishna, as applyed in the case in which both brothers were comming in Bet Din. And tosfot adds in two places that even with a later appearence at court they disqualifie the testimony of Kasher witnesses.

Tosfot answered that the presence of unfit witnesses don't disturb the regular testimony if they are not associated to the fit witnesses on bet din ( or Perhaps on the Get signature).

Tosfot Yom Tov on the mishna said that the answer of Tosfot is not valuable for Rishonim who think that at time of seeing only they already cancel the future testimony of the Kasher witnesses ( Rashi, Rambam for instance).

He answered that if the relatives or infit witnesses didn't come toch kede dibbur after the Kasher group, they cannot disqualify the group ( against Tosfot opinion). For a testimony which is not linked to going at bet din, as Get testimony, Tosfot yom Tov answered for Rambam and Rashi and Bartenura, following the SMA that the pre-selection of witnesses at seeing time excludes all enlargement of the witnesses group. The unfit and relatives are excluded by pre-selection. For this novelty a source is needed, Perhaps, later we would discuss this.

In Gemara,

אמר רבא, הכי אמרי' להו: למיחזי אתיתו או לאסהודי אתיתו? ‏

Judges ask them, why did you come there to see only or to testimony?

Coming where? Rashi, Ramban and Rosh said that judges ask unfit witnesses. Rabbenu Chayim Kohen said that they ask Kasher witnesses. The words of Rambam in chapter 5 of Edut are a condensation of the statement of Rabbi and the statement of Rava.

Tosfot explained that rava stated for business laws {I understand that Tosfot included with this words all testimony which needs no alert (Azhara) and Rambam also explains as this.

For Rabbi Yosse who ruled the rule of one witness who disqualify two good witnesses, in criminal law, without hatraa (the witness does not disturb if he did not alert), a relative can come and say that he was there as voluntary witness. Rav Chayim Kohen answered that we ask the good witnesses if they was associated with him. Tosfot Yom Tom answer that after kede dibbur he is not associated to the good group.

The Shach SA CM 36 sk 5 rejected the Rav Chayim Kohen's chiddush and regarded it as incongruent with most Rishonim. He answered that when the unfit witnesses are comming after the good testimony, they cannot cancel the good testimony, excepted cases in which their presence at the time of seeing fact was already known by Bet Din. So, separation of groups excludes problems of relative or unfit combination to the goog group as Tosfot Yom Tov.


The hearth of the matter

Now let's read poskim Acharonim. The Shach CM 36, end of sk 8 adressed the problem of the OP

לדידן העידנא פשיטא דכשר דהא מזמינים עדים כשרים מיוחדים לכך ואם כן פשיטא דהקרובים אינם מכוונים להעיד דאפילו יכוונו להעיד אינו פוסל דכיון דמזמינים עדים לכך הרי אנו מוציאים כל האחרים מכלל העדות ולאו כל כמיניהו דקרובים ופסולים להיות עדות בעל כרחנו וכך כתב מה"ר פרץ בהגהות סמ"ק סימן קפ"ג. ‏

The Shach said generally relatives are not here to testimony because they know their unfitness. He adds that the witnesses must to be pre-selected, and through this pre-selection, we exclude all additional witnesses from the witnesses group. {accordin to this, the case cited in the answer of @sabbahillel needs explanations}. Mefarshim reported that Mahari Ben Lev treat the case in which a non pre-selected witness come spontaneously to testimony. see Ramban quoted in Shach bellow, it seems that a spontaneous intervention is not avoidable {may be against the opinion of Rav Chayim Kohen in tosfot quoted above, which give to the Kasher wtinesses the right to select with who they were.}.

Q:

do two kosher witnesses need to be uniquely specified as being witnesses?

A --> Yes.

It is a good practice, lechatechilla. The advantage is to avoid addition of unfit witnesses or relatives (SMA, TYT and SHACH encourage this practice, in the further stuff, we see that Ramban himself report this practice)

Let's read further the Shach.

ועוד יש לומר דמסתמא לא חיישינן שכיוונו להעיד והא דאמרינן בש"ס היכי אמרינן להו היינו כשבאין אחר כך מעצמן לבית דין להעיד אבל כל זמן שלא באו לבית דין לא חיישינן להכי וכך כתב הרמב"ן בחידושיו פרק יש נוחלין שם במסקנתו, וזה לשונו ומעשים בכל יום בקידושין וכתובות כו' ואפשר לומר שכל זמן שלא באו לבית דין מסתמא הקרובים לא כיוונו להעיד והתם מפני שבאו לבית דין הם צריכים לישאל אלא שאינו מנהג אלא לזַמֵּן שם שנים כשרים להיות עדים ולא השאר עד כאן לשונו... ‏

The question of the Gemara "how do we ask the witnesses?" is only for witnesses who enter the Bet Din. The Ramban writted this in Chidushin Baba Batra perek Yesh Nochalim. He concluded that without spontaneous intervention of relatives in Bet Din, we believe that relative persons were present only as not witnesses but spectators. Ramban also mentionned the practice of witnesses pre-selection.

Q

If no witnesses are specified, but there are certainly two (or more) people that fit the description of a kosher witness and are present, can this be taken as 'testimony' despite there being other non-kosher witnesses (or invalid mixes of kosher witnesses, e.g. relatives) witnessing this event?

A --> Yes

According to the first words of Ramban, we believe that the unfit and relatives were here to show only.

Q

are kosher witness-pairs within the crowd considered a valid witnessing pair?

Shulchan Aruch Even Haezer 42, 4 in Rama.

ואפילו ייחד עדים יכולים אחרים שראו המעשה להעיד (ריב״ש סימן תע״ט)‏

Despite that a first group of witnesses were selected, we can use a second group (from Tshuvot Rivash) but they need to see accurately the transaction.

See in the same Sayif also Pitche Teshuva EH 42, sk 11 in name of the Shut Chatam Sofer Even Haezer 100 mentioned by @Double AA a recomandation to pre-select witnesses for Kiddushin because for this kind of testimony there is no difference between to coming to look or to testimony. This tradition is reported in CS in name of Ritba. One of the Chidushim of this Chatam Sofer Responsa is that The Chatan an d Kalla are considered as they said that they want only Kasher witnesses to perform the Kinyan Kiddushin, and so they pre-exclude all to a unfit or relative witnesses, even if those witnesses was choose by the mesader Kiddushin. The Chatam Sofer make a difference in nama of the avne Miluim between Kidushin testimony and other testimonies. The Kiddushin tesimony is not only a testimony of the transaction but a part of it. He pointed that Tosfot in Makkot asked only about Gittin, not about Kiddushin.

A --> Yes

No mention is made that in a such case we need to ask them if they were intentionally wanted to testimony. They need to see the ring giving and hear the marriage statement "hare at mekudeshet li...". (I don't speak about an other kind of testimony, e.g. testimony that one woman is married). So the case of sabbahillel is understood.

  • I hope that now this answer is right and a little more understandable. – kouty Sep 25 '16 at 14:46
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I will first reorganize the multiple questions included in the OP.
1. Would the simultaneous presence of kasher and non kasher lead them to be a mixed group of witnesses in which applies the rule followin which disqualifying a part of the group results in a whole disqualifying of the group?
2. Is it possible to counter this problem by declaring that only two preselected witnesses are authorized to testimony?
3. If the presence of good witnesses was not really a choice for the couple who wanted a non religious marriage, may this presence make the kiddushin valuable?


After a brief study (in SA CM 36, 1 and EH 42, 4 with commentaries, a study of Gemara Makkoth 6a, and additional rishonim in Shas kiddushin 43a BB 114a, Sanhedrin 9a, thanks to @DoubleAA I read also shut chatam sofer EH 100) , I will try a synthetic answer.
1. Regarding the special status of kiddushin testimony the presence of unfit witnesses doesn't interfere. But the Chatan and Kalla must to know that the witnesses are here and are testimonying. They want to combine this testimony to the ring giving as a part of the marriage act. This testimony is not categorized as proof only but as a part of transaction doing. No interference of unfit witnesses is possible. This kind of testimony must be distinguished from a testimony in bet din that Avraham and Sarah was married.
2. We can counter the mixture of good and bad witnesses by preselection in cases that it is needed and make a separate group. But this method, if used wrongly, cannot damage. For instance if one of the selected witnesses is relative to the kalla, the value of other non selected good witnesses remains and they will replace the relative.
3. In non religious marriage the couple generally want a regular or at least are not opposed to it. So, the presence a couple of good witnesses has full effectiveness even if they were not intentionally selected. But in an hypothetic case in which Chatan and Kalla was persued that no good witnesses are here, the good witnesses are ineffective as if they was dissimulated.

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