Two Categories of Witnesses
There are two categories of witnesses: a) witnesses who verify specific facts or events — known as eidei birur (“witnesses who verify”); and b) witnesses who are themselves an integral part of the events — known as eidei kiyum (“witnesses who establish”).
In the first instance, the event takes place in its entirety without their active participation. The purpose of the witnesses is merely to prevent later disputes and discrepancies as to what exactly transpired. As our Sages say:1 “Witnesses exist exclusively to prevent falsehood.”
The latter category of witnesses, however, are an integral component of the event; without the witnesses the event is not legally binding. Even when there is no dispute as to what exactly transpired and all agree with certainty as to what occurred, the event has no halachic validity if it does not take place in the presence of witnesses. It is the witnesses who establish and validate the event.
An example of the first category are witnesses to a loan, whose sole purpose is to verify the action. Nevertheless, they have no actual part in the legal transaction. Even if the loan were not transacted in the presence of witnesses, the loan is entirely valid and the borrower is obliged to repay the lender. The witnesses merely prevent the borrower from lying and saying, “I never borrowed the money.”
The witnesses to a marriage, however, fall into the second category; their presence constitutes an integral part of the marriage ceremony. According to Jewish law, a couple cannot become husband and wife without the presence of bonafide witnesses who witness the event. If kiddushin takes place without witnesses, then even though the man and woman both agree that the kiddushin took place, the kiddushin is invalid — it is the witnesses who establish and provide validity to kiddushin. Thus the Mishnah states:2 “If one performs kiddushin without the presence of witnesses, although both [bride and groom] admit to the event taking place, the kiddushin is invalid.”3
We must understand why it is specifically with regard to kiddushin that the witnesses function as eidei kiyum. Why is the kiddushin invalid without their presence and what special power do the witnesses possess that enables them to establish and validate this event?
Eidei Kiyum Establish an Entirely New Event
Let us first preface and contemplate the fundamental nature of witnesses:4
The Alter Rebbe writes:5 “The purpose of witnesses (their function being to supply an accurate account of events) is only applicable in a situation where the matter is concealed and hidden from all. Witnesses are necessary in such circumstances in order to testify as to what transpired. However, with regard to something that is revealed, witnesses are not necessary.” In other words, the purpose of witnesses is to make known the unknown.
Unknown matters themselves fall into two categories:
a) Something that already exists but is merely concealed and unknown. Here eidei birur (“witnesses who verify”) are necessary so that they may reveal what transpired. This way, they inform us of something that was previously veiled from our knowledge.
b) A state of affairs that has yet to exist. Here the purpose of the witnesses is to bring about (to draw down into reality) something that has yet to exist. This is the function of eidei kiyum (“witnesses who establish”): they “draw down “ and establish (mekayim)a new matter that did not exist until now.
Witnesses Build and Establish a New Home
The act of kiddushin constructs and establishes something entirely new:
As already explained in the introductory chapters, a wedding is entirely unlike two parties signing a partnership agreement. Rather, it involves erecting and creating something new: two separate and distinct individuals, man and woman, who are now transformed into a single entity, or in the words of the Zohar,6 “They are called one.”
In order to create and establish this new entity, eidei kiyum are necessary. It is they who erect this new edifice.
We can also understand this in slightly different terms:
The physical and the spiritual, or the body and the Divine soul, are the most antithetical entities imaginable. The body is physical and corporeal, a most lowly level, while the Divine soul is “part of G‑d above,” a portion of G‑d’s Essence, which is the loftiest of levels.
The act of kiddushin unites these two disparate extremes of body and soul. Inasmuch as the act of kiddushin is physical, the groom places a ring on his bride’s finger. At the same time, it has a tremendous spiritual impact on the soul, binding and uniting the two previously sundered “soul-halves” and making them “one.”
The physical act of kiddushin, then (placing the ring, etc.), has a singular effect: that the lowliest degree, the physical, unites with the loftiest level, the spiritual. Two witnesses who act as eidei kiyum are therefore necessary: it is they who empower and establish that this physical act will influence the most spiritual matters.7