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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN Shiur #5: Kiddushei
Ketana based on
shiurim by Rav Binyamin Tabory Introduction
The gemara (3b) mentions an interesting halakha - a father has the power
to marry off his daughter. Since
the consent of a woman is required for kiddushin to take effect, a minor, who is
not deemed to understand the consequences of her actions, can not give legal
consent and therefore cannot accept kiddushin. However, the Torah enabled the father of
a minor to accept kiddushin for her.
A girl is halakhically defined as a ketana (minor) until she reaches the
age of 12 (and has grown two pubic hairs), at which point she is termed a
na'ara, a young adult, for the next six months. After this period a woman is called a
bogeret (adult), reaches full legal independence, and she alone can consent to
marriage. It is important to
remember that the Torah also gave a father other legal rights over his minor
daughter. He can sell her as a
maidservant (until the age of twelve), he is entitled to receive the products of
her labor, and he acquires any lost objects that she finds. When she becomes a bogeret, however, the
father loses his financial stake in her completely. The Father's
Role
The main question that we will deal with has been posed by many
Acharonim. While it is true that
the Torah empowered a father to betroth his daughter, does that mean that the
father is acting independently on his own behalf and he has such rights by
law? Or, perhaps, he is only
empowered to act as an agent for his daughter. Kiddushin
3b
The gemara asks two questions: 1. What is the source that kiddushin can be
effected by giving money (kiddushei kesef)? 2. How do we know that the money is given
to the father of the bride (if she is a minor)?
The gemara quotes Shemot 21 that states that a maidservant leaves her
owner's domain at maturity without any payment of money. The gemara infers from this that when a
minor leaves another domain, namely that of her father, through marriage, there
is money rendered. The gemara then
goes on to debate how we know that the money goes to the father; perhaps it
should be given to the bride herself (at least if she is above the age of
12). The gemara suggests at one
point that since the Torah gave a father the right to betroth his daughter, that
implies that the money should be given to him. However, asks the gemara, maybe this is
true only if she is a minor; if she is over 12 years old, perhaps the money
should go to her (Rashi, Tosafot and Tosafot Rid differ as to the exact
intention of the question). The
gemara attempts to prove that even when a father marries off a na'ara the money
goes to the father by citing the law of "shevach ne'urim" - that the products of
a na'ara's labour belong to the father.
The gemara then seemingly rejects this proposal by saying that "shevach
ne'urim" is limited to the father's right to annul the vows of his
daughter. Finally, the gemara
clinches its point that the father receives the payment, from the original
source in Shemot (see Rashi and Tosafot for the exact method of
derivation).
Our original question seems to be the central issue in the gemara's
discussion. While the gemara knew
for certain that the father could accept kiddushin for a minor, it vacillated on
the question of whether the money should go to the father or the daughter. Perhaps the money should go to her as
the father is merely an agent acting on her behalf? At one point, the gemara said that if
the Torah empowered the father to accept the actual kiddushin, he obviously
receives the money. The reasoning
of this claim, may be that the father is acting on his own behalf and thus
obviously should be the recipient of the money. (See Ritva who says this rather
explicitly.)
However, this is not necessarily the correct understanding of the
gemara's line of reasoning. Maybe
the right given to the father to act as the agent of his daughter also entitles
him to accept the money. (Rashi is
rather ambiguous on this point; Rav Yogel, of Midrashiat Noam maintains that
this is the correct interpretation of Rashi). When the gemara later says that the
father receives the money because it falls under the category of "shevach
ne'urim," it certainly may be argued the gemara understands that the father is
only acting as her agent.
Nevertheless, he receives the money given for her hand in marriage, due
to the fact that he is entitled to all of her earnings. It is the daughter, then, who is the
primary recipient of this money; it is she who has the right to marry. The father only acts as her agent, and is
entitled to the money on the secondary level.
(It would be worthwhile to note that the initial statement of the gemara
indicating that the father is the primary recipient of the money refers to the
case where the daughter is a minor.
The gemara applies "shevach ne'urim" where the daughter in question is a
"na'ara" and therefore halakhically categorized as an adult. It would be reasonable to claim that the
father is merely an agent for the daughter only when the daughter has reached
adulthood. However, when the
daughter in question is a minor the father is acting
independently.)
To see how the gemara understands the father's role at the end of the
discussion, it is critical to examine the final source from which it derives
that the money goes to the father.
We will not delve into the gemara's conclusion now, as it is the subject
of a major controversy in the Rishonim, and the discussion would take us too far
away from our major inquiry.
It is important to note in this regard a passage in the Yerushalmi cited
by Tosafot here. The gemara said
that a father is empowered to betroth his daughter through any of the three
methods of kiddushin: kesef (money), shtar (marriage contract) or bi'ah (marital
relations). Rashi says that his
role enables him to keep the money and receive shtar. In the case of bi'ah however, the father
may choose who the groom will be, but no money is involved in this process. Tosafot cite the Yerushalmi that a
father may exact a price from the groom for such a kiddushin. This certainly implies that a father is
not merely acting as an agent for his daughter, but rather is acting on his own
behalf. The fact that he can charge
a fee for his daughter's kiddushin, clearly indicates that he is acting as the
'owner' of her rights, and not merely as her agent. Kiddushin
43b
The gemara (Kiddushin 43b) quotes a controversy between Rav Yochanan and
Reish Lakish as to whether there is any opinion that says that a na'ara may
accept kiddushin on her own, independent of her father. Reish Lakish maintains that just as
there is a debate whether or not she can accept a get (divorce document) for
herself or not, so there is a similar debate whether or not she can legally
accept an offer of kiddushin.
However, Rav Yochanan argues that even though there is such a dispute
regarding a get, no one can maintain that a na'ara can accept
kiddushin.
(Although the objectives of the two gemarot we have seen (Kiddushin 3b
and 43b) are different, there is a subtle connection worth mentioning. On daf 3b, the main objective was to
determine to whom the money goes, while the main objective on daf 43b is to
determine if a na'ara can accept kiddushin by herself. However, it is important to notice that
the gemara on 3b mentioned the possibility that a na'ara could receive the
money, in cases where she independently accepted the kiddushin. (see Rashi,
Tosafot loc. cit.). This would
therefore be consistent with Reish Lakish's opinion on 43b, and counter to Rav
Yochanan's argument there.)
Maybe this controversy also revolves around our original question. Rav Yochanan maintains that the father
acts on his own behalf and therefore it is impossible to entertain the idea that
a na'ara may accept kiddushin on her own.
Reish Lakish maintains that the father only serves as her agent and
therefore she may accept kiddushin independently if she wishes to. In is noteworthy, that even if she would
accept kiddushin on her own, the Ritva says that the money would still have go
to the father, in a manner akin to "shevach ne'urim"! (This Ritva is found on Kiddushin 5a,
column Summary
Up to this point, we have been discussing if the father may betroth his
daughter on his own account or he is really only the representative of his
daughter. We suggested that this is
the major issue discussed in Kiddushin 3b, and that the outcome is unclear. We also suggested that this may be the
source of the controversy between Rav Yochanan and Reish Lakish in Kiddushin
43b. We should now examine this
question in other areas where a father has rights involving his
daughter. Rambam and Ra'avad
Regarding Rape
If a man seduces or rapes a na'ara, the fine imposed by the Torah (Shemot
22:16) goes to the father. Rambam
(Hilkhot Na'ara 2:14) mentions this law as falling under the category of
"shevach ne'urim." (As mentioned
earlier, this law states that the father receives the benefits from a na'ara's
labor.) Although we pointed out
that our gemara rejected the possibility that "shevach ne'urim" relates to
anything but annulment of vows (and Tosafot in Bava Kama 87a s.v. Keivan says
this explicitly), Rambam still uses this rationale to explain why the money goes
to the father. This implies that
his position is that the father is not the party directly involved when a na'ara
is raped. The money actually goes
to the daughter and is merely transferred to the father as are all shevach
ne'urim.
This conjecture is further supported by the preceding halakha in the
Rambam. This halakha states that if
a man admits to seducing a na'ara (in which case the law requires that he pay a
fine), but she maintains that she was raped (an offence for which the payment is
greater). The Rambam says that this
is a case of "modeh be-miktzat," partial admission to the claim, where the law
requires the defendant to take an oath or pay. The Ra'avad, however, disagrees, and
maintains that since the daughter will not receive the money, she is not the
litigant, and can not register the claim of the higher fine. Only in the unlikely event that the
father had personal knowledge as to what indeed happened, may the principle of
"modeh be-miktzat" be applied. It
seems fairly clear Rambam and Ra'avad are arguing about our central
question. Rambam maintains that the
father serves as an agent for his daughter who is herself the true litigant
whereas Ra'avad thinks that the father is the direct
litigant.
This understanding may be further illustrated by halakha 15 in the same
chapter. If the claim came to court
after the na'ara's maturity, or after her marriage, or after her father's death,
the Rambam says that she receives the payment directly, and not only as an heir
to her father's estate. Once again,
the implication is clear. According
to the Rambam ,the money should go to her even before her maturity, but her
father acts as her agent. If the
father is alive, he receives the money as shevach ne'urim. When he dies or loses his rights,
however, she receives the money in her own right. However, Ra'avad thinks that the father
is the direct litigant and if he dies, the normal laws of inheritance should
apply. (An interested reader can
find an opposite interpretation of this point made by Rav M. Goldvicht in Beit
Contradiction in the
Rambam
We should point out that our interpretation of the Rambam, that he
understands that the father acts on his daughter's behalf, would only be
consistent with our interpretation of Reish Lakish in Kiddushin 43b (as stated
by Ritva above). But the Rambam
seems to agree with Rav Yochanan in Hilkhot Ishut 11-13, that a na'ara can not
accept kiddushin independently!
Therefore, we will suggest another interpretation of Rav Yochanan, one
given by Rav Chaim Shmuelevitz in Sha'arei Chaim on Kiddushin p. 24. It is well known that the Rambam thinks
that "kesef kiddushin," the money used to effect kiddushin, has different laws
than money in other halakhic areas.
[ed. note: This will be discussed in detail in future shiurim]. For kiddushin to be valid, the money
must be "kesef shel hana'a," money which gives benefit or pleasure to the
recipient. This point is elaborated
upon in Or Sameach, Hilkhot Ishut 5:24.
Using this principle, we can explain the Rambam's rulings. Remember, that even if a na'ara would be
allowed to accept kiddushin independently, the money would still have to be
given to the father as "shevach ne'urim."
In that case it would clearly be difficult for the daughter to gain any
benefit from this money.
Apparently, Rav Yochanan maintains that if the daughter were to receive
the money for her kiddushin independently, and would then transfer it to her
father as part of shevach ne'urim, she would not derive any benefit from the
money. Consequently, it could not
be considered "kesef hana'a."
However, if the father receives the money directly (albeit as the agent
of his daughter) this could be called "kesef hana'a," for the father, her agent,
will be receiving benefit.
Therefore, even though the Rambam feels that the daughter is the active
party in the betrothal, nevertheless, a na'ara can not accept kiddushin
independently because she can not receive direct benefit, from the money she
receives. Summary
Our main question was whether a father represents his daughter as an
agent to effect her kiddushin, or if he acts independently, and has the legal
right to marry her off. We showed
that this may be the main debate in our gemara Kiddushin 3b. This could also be the crux of the
controversy between Rav Yochanan and Reish Lakish about the eligibility of a
na'ara to accept kiddushin (on daf 43b).
Perhaps this question is also the source of controversy between Rambam
and Ra'avad regarding the fine incurred by a rapist. Finally, we tried to reconcile the
opinion of the Rav Yochanan with our understanding of the
Rambam. Sources for next week's
shiur: 1. Kiddushin 4a "Gufa ...
mashninan." Tosafot s.v.
De-lo; Ramban s.v. Be-bagrut.
Yad Rama Bava Batra 155b, siman 140. 2. Nidda 47b Mishna and gemara
till "shnotav." Yevamot 80a
"Itmar ... mishmai." 3. Ramban Hilkhot Ishut 2:1,
10. Guiding
questions: 1. Analyze the argument between
Rav and Shmuel in Yevamot 80a. 2. What three possibilities do
the Rishonim raise as to the retroactive adulthood of an aylonit according to
Rav? 3. Why is the Rambam so
repetitious in the above halakhot? |