and this is open to question. The correct view is that if they can convey what they witnessed through writing or a recognized gesture, their testimony is valid. This is because the purpose of requiring hearing is to receive the testimony, and the purpose of requiring speech is to deliver it. Once this objective is fulfilled—whenever a sound means of delivering the testimony is available, even through writing—that is sufficient. Many a mute person possesses knowledge of people’s circumstances that a speaking person does not possess, but conveys it by writing or gesture. Thus, according to the preponderant view, the requirement of hearing and speech is subject to further detail.
It is also stipulated that they be free of disqualifying impediments: they must not be ascendants or descendants of the husband, the wife, or the guardian. Accordingly, if a father marries his daughter off and the two witnesses are the girl’s brothers, the marriage is invalid, because they are descendants of the guardian. Likewise, if a man marries his daughter off and his father and son witness the contract, their testimony is invalid, and so the marriage is invalid. Similarly, if the husband’s father is present and is one of the two witnesses, the testimony is invalid and the contract is invalid. But if one of the brothers acts as guardian and his two brothers witness the contract, the contract is valid, because they are not descendants of the guardian.
Accordingly, if someone were to ask us, “Is a brother’s testimony valid for his sister’s marriage?” we would say: it is subject to distinction. If her father gives her in marriage, it is invalid, because the witness is a descendant of the guardian. But if her brother gives her in marriage, it is valid, because the witness is neither an ascendant nor a descendant of the guardian, the woman, or the husband. This is the established school’s position.
The second view on the matter is that it is valid for both witnesses, or one of them, to be among the ascendants or descendants. This view is undoubtedly correct—