[Avodah] The Kiddushin "raid" in Lakewood

[Elazar M. Teitz]

R. Arnold Lustiger related:

<About a month ago, a Lakewood bochur got married. Before the wedding, he had given the ring to his sister for safekeeping, who then returmed it to him to perform the actual kiddushin. A few days later, in the middle of the week of sheva brachos, the sister discovered that she had mistakenly given her brother her own wedding ring, not the one that  he had originally given to her. This discovery was made during just prior to Shabbos Sheva Brachos.
The question is: do the sheva brachos go on as scheduled?

(snip)

<1) Does the sister have ne'emanus? If not, is it not a case of shavya
anafshei?>

     What issur did she impose on herself?  

<2) Kiddushin on Shabbos is an issur derabanan. Would this issur be
suspended in this case so a private reenactment of the Kiddushin would be allowed to take place on Shabbos itself, thus avoiding sheva brachos levatalah?         

3)  Can there be a chalos of nisuin without eirusin, allowing the sheva brachos to continue even without this reenactment? The famous Mordechai comes to mind that chuppah is really the badekin, which places the nisuin before the eirusin.>

     If there can be no nisuin unless preceded by kiddushin, then re-enacting the kiddushin would not permit sheva b'rachos as part of birkas hamazon.  Her status at that point would be that of an arusah, and the b'rachos would have to be said as part of chuppah -- under a chuppah, with Hagafen coming first. Also, that day would then be the first of the shivas y'mei hamishteh, although, according to what I recall is a Noda Bihudah, sheva b'rachos could only be said on the first three days.  In fact, according to that shittah, this would apply even if the fourth day would have been one of the original seven.   

R. Zev Sero commented on the incident:

<Why not say that since the two rings were obviously similar enough that they could be easily confused, and are probably of exactly the same value, when he accepted his sister's ring as a return of his pikadon he absolved her of any further duties as a shomeret, and effectively swapped his ring for hers?  His ring became her property, the ring she gave him became his property and is now his wife's, and if the sister and wife each want their "own" rings that's entirely a matter between them.  Any reason we couldn't say this?>

     Because kinyanim don't happen automatically.  They require da'as of the parties, or at least of the makneh.  In this case, where there was no awareness of the need for a kinyan, there was no da'as for one.

<In a case of mekach ta'ut, we say "pachut mishtut eino chozer"; this
is certainly less than a shtut.  True, there was no intention to
transact any sort of mekach at all.  But can we compare the cases?>

     Pachos mishtus applies only if the mistake was one of mistaken price, not mistaken objects.  "Eino chozer" refers to the overpayment: it need not be returned. (Or, in the case of underpayment, it need not be paid.) 

<What if, between the mistake and its discovery, the sister's house
had been burglarised and the ring in her possession had been stolen?
Could she claim that the ring in her sister-in-law's possession was
really hers and must be returned, while the stolen ring was not hers,
and as a shomeret chinam she is not responsible for geneva?  Or
would her brother be able to say "you got a ring and you gave a ring,
our deal is concluded, and the ring that was stolen was yours"?>

     She might be considered a posha'as, for failing to exercise care and return his ring when asked to. Even if not, since she kept the ring with the intent of using it, she is either a sholachas yad or a sho'eles shelo mida'as.  In either event, she is liable even for oness.

EMT 
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