Parshas Lech Lecha 5786- Intriguing Questions & Answers
A Witness for Kiddushin Who Knows He Has Sinned and Has Not Yet Done Teshuvah
Q:
A question was recently presented to me at Kollel L’Horaah Yerushalayim regarding a serious matter. At a recent wedding, an individual was honored with serving as a witness to the kiddushin. This man knows that he has transgressed the Torah prohibition of theft — he had wrongfully taken money from a business associate. His conscience now troubles him, as he has not yet done teshuvah or repaid what he stole.
He therefore wonders that perhaps, as one who is considered a rasha, his testimony is invalid, as ruled in Even HaEzer42:5 and Choshen Mishpat 33–34. And since a rasha, or one who is suspected of serious immorality — such as yichud or similar sins — is invalid as a witness, perhaps the kiddushin is void and must be repeated, since he has not yet repented?
A:
At first glance, it would appear that the kiddushin is valid and that the witness is considered kosher l’eidus — fit for testimony. The reason is that the Beis Yosef, citing Teshuvos Zichron Yehudah (§82), rules that witnesses are disqualified only when testimony regarding their disqualification due to sin has been formally accepted in beis din in their presence. This view is also cited in Erech Lechem (Even HaEzer 42:5).
However, one could argue that the above applies only where the person’s aveiros have not been publicly established. In such cases, since no beis din has accepted testimony declaring them invalid, we presume that “all Jews are assumed to be kosher,” and thus we do not invalidate their testimony. But in this instance, the witness himself knows with certainty that he has sinned and has not yet repented. Thus, there is no uncertainty — he knows full well that he is halachically considered a rasha and unfit to testify.
According to this reasoning, perhaps he is required to inform the couple that the kiddushin must be repeated, and he should refrain from accepting the kibbud of serving as a witness until he has fully repented.
Indeed, several Acharonim discuss such a case and express concern. See Teshuvas Chavas Yair, cited in Urim (Siman 28:3), Nesivos HaMishpat (28:2), and Ketzos HaChoshen there, quoting his brother. See also Kovetz He’aros (Siman 21:24), who discusses whether one who has stolen but not yet returned the theft is qualified to testify.
Nonetheless, as the Bach (Choshen Mishpat 34:42) explains, even if one knows he has sinned and not yet repented, he need not instruct the couple to perform a second kiddushin. For although he has indeed transgressed, he is not halachically considered a rasha unless a beis din has so ruled. Consequently, not only bedi’eved but even lechatchilah, if he is asked to serve as a witness, he need not refuse. This appears to be the position of the Chasam Sofer (Yoreh De’ah 11) and the Sefer Tumim (87:27).
In practice though, while there is room to be lenient — especially bedi’eved, and particularly to avoid embarrassment or unpleasantness — it is certainly preferable to appoint tzaddikim and yirei shamayim as witnesses. At the very least, one should follow the instruction of the Seder HaGet (2), that the mesader kiddushin should remind the witnesses to do teshuvah before the kiddushin.
While we are on the topic, a remarkable story is told concerning Maran HaGaon Rav Shlomo Zalman Auerbach ztz”l, who was supposed to be mesader kiddushin at a wedding. Upon arriving, he saw that they intended to honor a person as a witness whom Rav Elazar Menachem Shach ztz”l had suspected of being an apikorus. Rav Shlomo Zalman did not want to conduct the kiddushin with such a witness, yet he was equally unwilling to humiliate him in public — especially as the man was regarded as a prominent Rav. With characteristic wisdom, Rav Shlomo Zalman announced that, since the other rabbi was greater than he, it would be more fitting for that man to officiate at the wedding, while he himself would serve as a witness instead.
We see from here that for the sake of kavod habriyos, we may even give siddur kiddushin to someone who is an apikorus, to ensure that the witnesses for the kiddushin are kosher.
In Summary:
If one who has been honored to serve as a witness to kiddushin knows that he has committed a sin — such as theft or immorality — and has not yet repented, he is technically still considered valid, since only a beis din can formally disqualify a witness. Nevertheless, it is proper practice for a mesader kiddushin to remind all witnesses to do teshuvah, so that they do not bear the status of a rasha at the time of their testimony.
Tzedakah Funds Collected for a Specific Cause That Ultimately Were Not Needed — What Should Be Done with the Money?
Q:
I have been asked several times about a situation in which tzedakah was collected for a particular cause — for example, to establish a yeshivah, a chesed organization, or another communal institution. Money was raised in shuls and private homes for that express purpose, but ultimately, the plans changed and the funds were no longer required.
A similar case once occurred with a man who urgently needed a complex surgery abroad to save his eyesight. Funds were collected from generous donors throughout the community, who gave most generously to assist him. When the patient arrived overseas for the operation, further examinations revealed significant improvement — so much so that, b’chasdei Hashem, his eyesight was no longer in danger, something the doctors described as a “medical miracle.”
The question then arose: What should be done with the money that had been collected for his surgery? Should it be given to him for other personal needs, redirected to another patient requiring surgery, or can it be used for general tzedakahcauses?
A:
It is clear that if we know who the donors were, the funds should be returned to them, since their contributions were made for a specific purpose. The question applies only when the donors are numerous and anonymous, making it impossible to return the money.
This question was, in fact, presented to Maran HaGaon R’ Chaim Kanievsky ztzuk”l, who ruled that the donors performed a great mitzvah by giving others, and that, in principle, the money belongs to the patient, or, in the case of an institution, to its director. Others, however, distinguished: if the individual no longer requires the funds and is not in need, the money should not be given to him, but rather used to assist someone else facing a similar need.
The sefer Tzedakah U’Mishpat (Perek 9, p. 231) by HaGaon R’ Yaakov Blau ztz”l explains that this question is rooted in a dispute between the Rosh and the Rashba, cited in Shulchan Aruch Yoreh De’ah (253:7):
“If funds were collected for the redemption of captives and the captive died before being redeemed — some say the money goes to his heirs, and others say his heirs do not acquire it. The halachah nowadays follows the latter opinion, since we assume the donors did not intend their contribution to apply under these circumstances.”
This disagreement is likewise discussed by the Acharonim in explaining the Yerushalmi (Shekalim 2:5):
“If they collected for one assumed to have no means, and it was discovered that he did have, R’ Yirmiyah says that the remaining funds go to his heirs. R’ Idi D’chutra disagreed, reasoning that the donors’ intent was only according to what they believed — that he had nothing — and therefore their collection was based on a mistaken assumption. R’ Yirmiyah countered and said that he has a proof to his opinion from the Mishnah.”
The Ra’av (in his commentary to the Mishnah) writes that when money is collected for burial expenses under the mistaken impression that the deceased left no funds, and it is later found that he did, we do not give the remainder to the heirs, since the collection was made in error. The Mareh HaPanim on the Yerushalmi challenges this, noting that while R’ Idi D’chutra held such a view, the Yerushalmi concludes like R’ Yirmiyah — that the money indeed goes to the heirs.
Rav Blau concludes that the dispute between the Rosh and Rashba applies only when the collection itself was made in error — for example, when it was based on incorrect assumptions. But if the collection was valid at the time and only later circumstances changed, all agree that the funds belong to the intended recipient. His words:
“If, at the time of the collection, there was indeed a need, and only afterward circumstances changed, the Rosh would agree that the poor person has acquired the funds. Even if he later became wealthy, they should still be given to him, and if he died, to his heirs.”
Accordingly, in our case — where the collection was properly made, and only afterward the situation changed when the patient recovered — the money belongs to the patient and should be given to him.
In Summary:
When tzedakah is collected for a specific individual or cause — whether for a patient’s surgery or a tzedakah institution — and the funds are ultimately not needed for their original purpose, the practical ruling is that the money may be given to the intended beneficiary even if he no longer requires it, or the head of an organization to be used for a similar purpose.
Whitening One’s Teeth on Shabbos
Q:
A young woman, who has recently begun the parshah of shidduchim, asked whether she may use whitening strips that her dentist provided on Shabbos. She wondered whether doing so might involve a concern of the melachah of melabein(whitening) or of tzove’a (coloring).
A:
Nowadays, whitening one’s teeth has become quite common. The question arises whether this procedure is permissible on Shabbos due to two potential halachic concerns.
The first is melabein — the act of whitening, which was one of the melachos performed in the Mishkan, where wool was washed and whitened. However, there the process involved soft material such as wool, whereas teeth are hard; see Mishnah Berurah (302:41).
The second concern is tzove’a — coloring. Regarding tzove’a, we do not find a distinction between hard and soft surfaces; in general, it is forbidden to color any object on Shabbos. However, although tzove’a is an issur d’oraisa (see Shabbos 94a), nevertheless, the Shaar HaTziyun (303:65) writes that coloring the human body is only d’rabbanan.
However, in our case, there is strong reason to say that no act of whitening or coloring is taking place at all. The purpose of these whitening strips is not to apply color, but rather to remove stains and discoloration that obscure the natural whiteness of the teeth. The strips do not deposit coloring; rather, they cleanse and restore the natural color.
Furthermore, since the effect of these strips is not immediate — it generally takes a number of days to notice any change — there is no visible transformation at all when the strips are applied on Shabbos.
Nevertheless, this sevara cannot be used to be lenient, as not all products are alike. Therefore, some poskim advise refraining from using such products on Shabbos and instead using them either before Shabbos or immediately after motza’ei Shabbos, due to the concern of tzove’a.
This is based on the ruling of the Shulchan Aruch (Siman 303:24), which prohibits a woman from applying a substance to her face that leaves even a faint color, because it is considered tzove’a. From there it appears that any change in color, regardless of how it comes about, falls under this category.
In Summary:
It is proper to refrain from using teeth-whitening strips on Shabbos. However, those who are lenient have valid halachic grounds to rely upon, since the process does not involve actual coloring and no visible change occurs immediately. Nonetheless, lechatchilah, one should avoid their use on Shabbos out of concern for the prohibition of tzove’a.
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