Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
In this week’s parshah Yosef brings his two sons to his father Yaakov to receive blessings before his death. Rashi tells us that when Yaakov was about to bless Yosef’s sons the shechinah left him as a result of some of Yosef’s sons’ evil descendants. Yaakov then asked Yosef, “Who are these?” Rashi interprets this question to mean the following: from where did they come from that they are not worthy to receive blessings? Yosef’s answer: they are my children that Hashem gave me “bazeh – in this.” Rashi explains that Yosef showed Yaakov the shetar kiddushin and kesubah. Rashi elucidates that Yaakov’s question was based on the assumption that they were not born from kedushah – to which Yosef showed him that he married Asnas and had a proper kiddushin and nissu’in.
Many Acharonim discuss how Yosef’s kiddushin was valid, when the Gemara in Kiddushin (65b) clearly states, “ein davar shebe’ervah pachos mishtayim – any matter relating to ervah must have two [kosher] witnesses in order to be valid.”
The sefer, Yitziv Pisgam, authored by the Klausenburger Rebbe, suggests that perhaps Yosef did kiddushin via hoda’as ba’al din (admitting that they married). He suggests that this is the meaning of the word “bazeh” that Yosef used, for the Torah source that one’s admission is acceptable as testimony is from the pasuk in Parshas Mishpatim: “ki hu zeh.” Therefore Yosef’s answer to his father that he performed kiddushin using hoda’as ba’al din is derived from the word “zeh.”
However, the Gemara in Kiddushin 65b discusses whether hoda’as ba’al din would suffice for kiddushin. Regarding monetary matters, if one admits that he owes money his testimony outweighs the testimony of even 100 actual witnesses. But whenever his admission affects others, he is not believed. The Gemara says that regarding kiddushin one’s admission affects others – and is therefore not believed.
The Rishonim disagree as to whom the admission affects. Rashi (Kiddushin 65b) and Tosafos (Gittin 4a) say that it affects the relatives of the man and woman, with the relatives now forbidden to the new couple. The Rashba writes that it affects all the men in the world who cannot marry her since she is a married woman. However, according to both explanations, hoda’as ba’al din would not have been applicable to Yosef. So how was his kiddushin valid?
I want to suggest that prior to mattan Torah this halacha would have been different. The Rambam writes in Hilchos Ishus 1:1 that before mattan Torah, if a man and a woman would agree to marry and wanted to live together they would simply live together. The act of living together was a union that rendered a woman as married, forbidding her to be with anyone else. Many believe that bnei Yisrael, prior to mattan Torah, only had a status of Yisrael l’chumrah. Since Yosef and Asnas could have simply lived together, thereby rendering her as forbidden to the entire world (as bnei Noach), there was no problem that their hoda’ah would deem her forbidden – since they could have forbade her without kiddushin.
This suggestion only fits according to the Rashba, who explained that the people affected by hoda’as ba’al din of kiddushin are all the men in the world who the woman becomes forbidden to as a result of their admission. Since they have the ability to forbid her without their admission, they can also do so by admitting that they are married. However, according to Rashi and Tosafos, the relatives of the man and woman would not become forbidden to them if they would simply live together. So we still need to explain how, in their views, the kiddushin was valid.
Perhaps I can suggest another solution to answer the question in accordance with Rashi and Tosafos’s view. According to many, bnei Yisrael, prior to mattan Torah, had the status of bnei Yisrael. But they had to undergo a gerus process in order to achieve that status. The Maharal (Gur Aryeh, Parshas Vayigash 46:10) says that even though they were born to a mother who had already performed the gerus process, the offspring would have to convert as well. A ger is considered as not related to his biological relatives. The Maharal explains that this is how Shimon was allowed to marry Dina, his sister from his mother and father – as they were not related (they were gerim). It also explains how Yaakov married two sisters.