Must Children Presume Parental Penitence? (Week Two Summary of SBM 2018)

by Zachary Ottenstein, SBM Fellow

A beraita on Talmud Kiddushin 22b declares that if a man and woman agree to marry “on condition that he is righteous”, they are married, since he may have “thought of repentance” (שמא הרהר בתשובה).  Lechem Mishnah (Ishut 8:5) and many subsequent scholars see this text as contradicting the consensus ruling of later authorities that a marriage contracted in front of invalid-as-sinners witnesses is null and void: why don’t we presume that the witnesses repented and became valid?

SBM explored this question via a thorough examination of the first half of an extensive responsum written by Rav Ovadiah Yosef z”l in 1957 (Yabia Omer Volume III, Even Ha’ezer 8).

In Rav Ovadiah’s case, two witnesses come to a beit din and testify that a young woman had accepted a token of kiddushin from Mr. X. Both attest that they saw the kiddushin take place in a prearranged place at a prearranged time of day.  They say that the marriage was intended to help the young woman evade the match that her parents had agreed to with her cousin. The young woman admits to none of this and maintains that she never accepted kiddushin from Mr. X.

The witnesses’ recollections conflict regarding  the date and time of day of the wedding: One claims that it was the week before Pesach, while the other claims that it was a week after Pesach. In addition, the father of the woman brought witnesses  stating that the witnesses to thekiddushin were both violators of the Shabbat due to them smoking cigarettes during Shabbat. One of the witnesses admits to not being halakhically observant man and specifically to smoking on Shabbat. So it not clear whether a kiddushin transaction took place, and furthermore, if whatever took place happened in the sight of valid witnesses.

The question is whether we can be sure that kiddushin was never accepted, and/or that no valid witnesses were present if it was accepted, so that we can free the young woman to remarry. The obvious way out of this predicament is for Mr. X to give her a get, but unfortunately he has “turned his shoulder and prevented her release via a get.”   The father of the bride strongly desires a ruling that no get is necessary, but one rabbi argues for stringency, citing our opening beraita as requiring us to be concerned lest the witnesses had repented and were therefore valid. Rav Ovadiah seizes the opportunity to explore the broad issue of presumed penitence.

Rav Ovadiah begins by quoting an Amoraic dispute found on Talmud Sanhedrin 26b.   R’ Nachman states that a person suspected of sexual improprieties is still a valid witness.  R’ Sheshet counters this by asking rhetorically: “He is owed 40 lashes on his shoulders (as punishment for his improprieties), but he is still valid?!” Rava then offers a reconciliation or compromise between these two positions: “R’ Nachman in reality agrees that this person cannot testify on issues related to women, whether to “take her out” (gittin) or to “bring her in” (kiddushin).”

This passage led Rambam to conclude that a kiddushin performed in front of witnesses who are invalid per a deoraita law (for which the minimal punishment is lashes) is null and void.  But why shouldn’t we at least be concerned for the possibility that the witnesses had “thought of repentance”? Why would thinking of teshuvah be sufficient to turn the groom from an absolute rasha to a tzaddik, but leave the witnesses as disqualified reshaim?

Rav Ovadiah quotes a sound explanation from Responsa Maharam Padua 37.

טעמא רבה איכא,

שמאחר שהוא אומר כן ורוצה בקידושין –

מסתמא רוצה לקיים תנאו

There is a great reason for this

Since he states this (condition) and he wants the kiddushin –

The presumption is that he wants to fulfill the condition

Since his condition can only be fulfilled through his repentance, therefore a lot more weight can be given to the idea that maybe he has thought about doing teshuvah. However, the witnesses have no such obligation to fulfill and therefore their potential thoughts of doing teshuvah do not carry as much weight.

This answer of the Maharam Padua seems logical, but it is not based on halakhah as much as it is based on psychology.  Shu”t Radbaz 1:140 gives an entirely different reason for declaring the eidim to be invalid. He writes

דכיון דאיכא סהדי דעבר עבירה שנפסל בה לעדות –

אינו חוזר להכשרו עד שיבאו עדים ויעדו שחזר בתשובה

Since there are witnesses that he transgressed a transgression that makes him invalid to testify

He does not return to being valid until witnesses testify that he has repented

Witnesses become invalid due to their witnessed violation of a commandment, and therefore they cannot become valid again until they have witnesses who can testify that they have in fact repented.

How does all this pertain to the SBM topic of Kibbud Av va’Em?  To answer that question we turn to some primary sources that Rav Ovadiah will use in the second half of his responsum.

Rambam (Hilkhot Mamrim 6:11) states that a mamzer is obligated to honor his father, but he is not liable to punishment if he strikes or curses his father before his father repents (of the adulterous or incestuous act that led to his conception). He goes on to say that even if a parent is wicked and sins frequently, the son is still obligated to fear and honor him.

This contrasts with the opinion of the Tur (Yoreh Deah, Hilkhot Kibbud Av va’Em 240).  Tur holds that as long as the father remains sinful, there is no obligation to honor him, but if and when he does repent, the obligation is reinstated.  But – to bring us full circle – can the Tur’s position ever be relied on in practice, or must children always be concerned lest their parents have “thought of teshuvah” and therefore all obligations toward them have been reinstated?  (More radically: Is it possible that since repentance can retroactively transform the status of past deliberate transgressions into accidental transgression and even virtues, is it possible for parental sinners to retroactively become deserving of honor, and therefore for children to become retroactively guilty for having failed to act toward their previously wicked parents in accordance with the obligations of kavod or yir’ah?)

In the coming weeks, we will continue to discuss hirhurei teshuvah and how it pertains to questions of Kibbud Av va’Em. Our background in the concepts of hirhurei teshuvah and honoring wicked parents, both in the primary and secondary sources, will provide us with an excellent springboard for discussing other relevant questions such as: What makes a parent wicked enough to void the chiyuv of the child towards them? Is there ever a case in which the halakhah itself obligates or recommends that a child not honor his or her parent? Please stay tuned!

Shabbat Shalom!

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