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Kidushin, 63

63b

QUESTION: The Mishnah teaches that when a man says, "I married off my daughter, but I do not know to whom," and someone comes and claims that he is the man who was Mekadesh her, that man is believed. In the Gemara, Rav states that the man is believed with regard to requiring the woman to receive a Get from him, but he is not believed with regard to marrying her himself (with Nisu'in).

The reason why he is believed with regard to requiring the woman to receive a Get is because of a Chazakah that "a person does not sin with something that he gets no pleasure from" ("Ein Adam Choteh v'Lo Lo"). The possible sin is that if he did *not* marry her, but it was another man who married her, then when he gives her a Get the Get will not permit her to marry anyone else, because she is still married (to the man who actually was Mekadesh her). Nevertheless, he is believed to say that *he* is the one who married her and thus the Get permits her to marry anyone she wants, because he would not lie in order to cause her to sin, since he gains nothing from that sin.

On the other hand, he is not believed with regard to marrying her himself, because perhaps his Yetzer ha'Ra overcame him and he is not telling the truth.

When the man claims that he is the one who was Mekadesh the woman, his intention is to keep the woman as his wife. Beis Din does not allow him to do so, and thus he is believed only with regard to requiring the woman to receive a Get from him.

How can the Gemara call this a case of "Ein Adam Choteh v'Lo Lo?" His intentions are for *his own gain*; he is not testifying with intent to free her to the rest of the world!

ANSWER: The RAN explains that even though his original intentions were for his own personal benefit, once he is informed that he may not keep her as his wife, we can assume that he would retract his testimony if his intentions were solely selfish. The logic of "Ein Adam Choteh v'Lo Lo" does not apply to the original testimony that he gives in Beis Din, but rather to his act (or lack of act) of retracting that testimony. Since the man did not retract his testimony, we can assume that "Ein Adam Choteh v'Lo Lo" and rely on it to free her to others with a Get, since that Heter is not for his personal gain.

QUESTION: The Mishnah says that when a man says, "I married off my daughter, but I do not know to whom," and someone comes and claims that he is the man who was Mekadesh her, that man is believed.

We know that there is a rule that "Ein Davar she'b'Ervah Pachos mi'Shenayim" -- a matter of a prohibited relationship requires at least two witnesses. (This is in contrast to cases of Isur and Shevu'ah, in which one witness is enough.) Moreover, there is a rule that a witness may not testify about a matter that affects him. How, then, can we accept this man's testimony that he is the one who was Mekadesh the woman? He is only a single witness, and his testimony is about himself!

ANSWER: The Rishonim explain that there is a difference between testimony that establishes a new fact or event, and testimony that merely reveals that which was unknown heretofore ("Megaleh Milsa"). In the case of our Mishnah, the facts are already established. We know that the father married off his daughter to a man (even though it is only the father's own word that establishes this fact, the Torah ("Es Biti Nasati l'Ish ha'Zeh" (Devarim 22:16) explicitly believes the father of a girl with regard to her marital status, see 64a). We already are aware that the woman is an Eshes Ish, and an Isur Arayos already exists for every man to live with her, other than her husband. The only thing we do not know is the identity of her husband. Thus, when the single witness comes and says that he is the one who was Mekadesh her, he is merely revealing to whom the father married off his daughter. For this type of testimony, even one witness is believed.

QUESTION: The Mishnah says that when a man says, "I married off my daughter, but I do not know to whom," and someone comes and claims that he is the man who was Mekadesh her, that man is believed. Rav and Rav Asi argue about what the man is believed for: Rav says that he is believed with regard to requiring the woman to receive a Get from him, but he is not believed with regard to marrying her himself (with Nisu'in). Rav Asi says that he is believed even to marry her himself with Nisu'in.

The Gemara challenges Rav's opinion from the Mishnah which says that if two men claim to have married her, then both must give her a Get, unless they agree among themselves for one of them to give a Get and the other to marry her. The fact that one may marry her disproves the view of Rav, who says that the man is *not* believed with regard to marrying her.

The Gemara answers that Rav agrees that when one man agrees to give a Get and to let the other man marry her, that the man who marries her is believed, because in this case he would not lie. If he were lying, he would be afraid that the father would recognize the other man as the one who was Mekadesh his daughter. Hence, when one man agrees to give a Get, it is because he is backing down from his false claim, and the man who still claims to be the one who was Mekadesh her is believed entirely.

We know that in the first case of the Mishnah, when only one man claims to have married the woman, Rav agrees that if the man is willing to give a Get, he is believed and the woman is no longer considered an Eshes Ish, and she may marry any man after the Get is given. Why do we not judge the second case of the Mishnah, in which one man gives her a Get and the other marries her, in the same way? We should consider the one who wants to marry her like anyone else in the world who is permitted to marry her following the giving of the Get! Therefore, once one witness gives the Get, the other should be allowed to marry the woman, even according to Rav! What, then, is the Gemara's question on Rav (and why does the Gemara have to answer "Irtusei Mirtas")?

ANSWER: The RITVA explains that we view the case of two men who each say, "I was Mekadesh her," as a type of "double" Heter. If only one witness gives a Get and the other does nothing, then it seems clear that neither one may marry this woman. We are that perhaps the other witness is saying the truth and she is still an Eshes Ish. Hence, the Heter of the woman is only complete when *both* witnesses work together. The Ritva maintains that since each witness cannot create the Heter on his own, we can no longer apply the logic of "Ein Adam Choteh v'Lo Lo." Neither witness considers himself the "Choteh," since the sin of permitting an Eshes Ish to the world is not being done by him alone, but rather he is doing it together with a partner. Each one passes the blame to the other.

(b) The RASHBA explains the Gemara differently. Each witness is aware that the other is saying, "I was Mekadesh her." When one witness agrees to give a Get, he might be assuming that the woman is probably going to marry the other witness. After all, it is that witness who claims to be married to her. We therefore can no longer give any trustworthiness to the witness who is giving the Get, for perhaps he really did not marry her and he is just relying on the other witness and assuming that no Kilkul will occur. Therefore, according to Rav, some other basis for believing his testimony must be found.