The teenage boy who slipped a ring on the finger of the girl in a secluded location at summer camp while saying harei at mekedushet li – you are betrothed to me – has not gotten the girl into trouble, as long as there was nobody around who witnessed the “ceremony.”
This is because a marriage ceremony conducted in private between bride and groom, with no witnesses present, is ineffective and the “bride” is free to marry another person without having to undergo a Jewish divorce ceremony.
The requirement of two witnesses for an effective marriage is derived from a gezerah shavah, an analogy based on the Torah’s use of the word davar – a claim both in the verse dealing with commercial matters and in the verse dealing with marital affairs: al pi shnei eidim yakum davar – a claim must be established by two witnesses – and ki matza ba ervat davar – he has a claim of sexual misconduct against her.
A person who claims he lent money cannot win a judgment unless he brings two witnesses to court to substantiate the facts of the claim. So too, a spouse cannot claim to have entered into an effective marriage unless there are two witnesses who can testify that they witnessed the marriage take place.
What happens if just one person witnessed the “marriage ceremony”? In commercial matters, the testimony of one witness has some significance in so far as the defendant against whom the single witness testifies must pay the disputed amount unless he takes an oath in court that he never borrowed the money.
And what if both “bride” and “groom” admit they entered into the “marriage ceremony” even though nobody witnessed it? If one is consistent in drawing the gezerah shavah, the analogy between marriage and commercial matters, then the marriage should be effective. After all, the rule in commercial matters is hoda’at ba’al din keme’ah eidim damei. This means that if the defendant admits he borrowed the money, the admission is equivalent to the testimony of 100 witnesses and he must pay. So why should the case of the marriage entered into without witnesses be any less effective if both bride and groom admit they entered into marriage?
The answer lies in the unique nature of the testimony required in marital matters. Witnesses to a marriage are eidei kiyum, which means their testimony is required to make the marriage transaction legally effective.
The concept of eidei kiyum can be better understood by borrowing from the modern legal concept of the Statute of Frauds or Section 9 of the Israel Land Law, both of which require a signed document for a sale of land. Without a signed document, there is no sale and a purchaser cannot force the “seller” to transfer his house even if the seller admits that he promised the purchaser to do so.
So too without witnesses the marriage is not effective in Jewish law, even if the couple admits they entered into marriage. This is different from the nature of the testimony given by witnesses to a commercial transaction, such as a loan. In the case of a loan, witnesses are not required to make the loan transaction legally effective. The loan can be legally effective without them. Witnesses are only required to prove that the loan took place if the defendant denies it. Witnesses to a loan transaction are eidei hochachah, probative witnesses. This means they are required to counter a denial but they are unnecessary if the borrower admits that he owes the money.
The Ketzot Hachoshen, however, rejects this distinction. If, as explained above, the requirement for two witnesses at a marriage ceremony is derived from an analogy to commercial transactions, then the nature of witnesses must be the same and they must both be witnesses of the eidei kiyum type. If so, why does the couple’s admission not render the marriage effective?