79a: Agents for Kiddushin

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=79a&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur may include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

Last week, we began to study the mishna that starts at the bottom on 78b and continues on 79a. The mishna is based on the fact that one can appoint a shaliach, an agent, to perform kiddushin (betrothal), the initial stage of marriage. Kiddushin is generally accomplished when a man gives a ring or something of monetary worth to a woman with the expressly stated purpose of creating a marriage bond. The man can appoint someone to give the ring in his place and the woman can similarly appoint someone to receive the kiddushin on her behalf. The mishna is also predicated on the fact that a man can act on his daughter's behalf regarding kiddushin until she reaches the stage of bagrut (generally at the age of twelve and a half). Until then, he is the address for all kiddushin related issues; he may accept kiddushin and may appoint a shaliach to accept kiddushin. The mishna teaches that if the father appoints a shaliach to accept kiddushin for his daughter and the shaliach carries out his instructions, but the father also accpets kiddushin from someone else, the kiddushin that was carried out first is valid. Thus, if the shaliach accepted kiddushin before the father did, she is married to whomever betrothed the girl via the shaliach; the kiddushin the father tried to accept is irrelevant because she was already married to someone else at that point. Of course, if the father's kiddushin came first, that is the one that is valid. If we don't know which came first, we must be concerned about each, and the girl would not be able to marry until at least one of the two men gives a get (divorce document).

The next part of the mishna refers to a woman who has reached independent adulthood (bagrut). From this point, she is fully in control of her own destiny vis-א-vis marriage. She can accept kiddushin for herself and can appoint a shaliach to do so; her father is completely out of the picture. We are up to the second line of 79a. 

 

 

And similarly a woman who gave permission to her agent to accept kiddushin [on her behalf], and she went and accepted kiddushin for herself: If hers preceded - her kiddushin is a kiddushin , and if her agent's [kiddushin] preceded - his kiddushin is a kiddushin , and if it is not known - both give a get; and if they wanted - one gives a get and one marries [her].

וכן האשה שנתנה רשות לשלוחה לקדשה, והלכה וקדשה את עצמה: אם שלה קדמו - קדושיה קידושין, ואם של שלוחה קדמו - קידושיו קידושין, ואם אינן יודעין - שניהם נותנים לה גט; ואם רצו - אחד נותן לה גט ואחד כונס.

The mishna here teaches the same guidelines as above in the mishna's first section, just in the parallel case of a bogeret. At this point, if she appoints a shaliach to accept kiddushin for her, and then herself accepts kiddushin from someone other than the man who tried to marry her through the shaliach, the kiddushin that was carried out first is the one that is valid. If we cannot clarify the chronology, we will have to treat the case as a safek (doubt), and she will not be able to marry until at least one of the two potential husbands gives a get. The can each write a get, which would allow her to marry a third party, as she is definitely divorced from her husband; or, one of the men can write a get and the other can marry her. 

The gemara now addresses the obvious question of why the mishna finds it necessary to teach the same guidelines in two parallel cases.  

 

 

Gemara And [the two cases are both] needed: for if [the mishna] would have taught us regarding him (the father), it is because a man is knowledgeable regarding lineage, but a woman who is not knowledgeable regarding lineage - I [might] say that her kiddushin should not be a kiddushin; and if [the mishna] would teach us regarding her, because a woman checks carefully and gets married, but he (the woman's father) - I [might] say that he doesn't care. [The two cases are therefore both] necessary.

גמ' וצריכא: דאי אשמעינן גבי דידיה, משום דגברא קים ליה ביוחסין, אבל איתתא דלא קים לה ביוחסין - אימא לא ניהוו קידושיה קידושין; ואי אשמעינן גבי דידה, משום דאיתתא דייקא ומינסבא, אבל איהו - אימא לא איכפת ליה. צריכא.

The implicit question of the gemara is why the need for both cases, as we mentioned above. The gemara does not find it necessary to explicitly state this question, and instead launches right into an explanation of the issue. The gemara explains that if we only had the first case in the mishna, one might have thought that the law would not extend to the case of a bogeret. Perhaps the girl would consider herself not fully capable of determining the genealogical status of a potential mate, and would therefore rely on the shaliach's kiddushin rather than her own. Her own acceptance of kiddushin was done with the intent that it be binding only in the event that the shaliach not carry out his mission. Therefore, the mishna had to teach us the case of the bogeret, that if her kiddushin preceded that of her shaliach, it is in fact binding. However, if the mishna had taught us only the case of the bogeret, one might have erroneously thought that the law applies only to that situation. One might claim that the girl is more particular about her marriage partner than her father would be. Therefore, if she herself accepts kiddushin after appointing a shaliach, we can be sure that it is because she fully intends to be bound by the kiddushin that she is accepting. However, if the father accepts kiddushin for his pre-bogeret daughter after having appointed a shaliach, it is not because he prefers the kiddushin that he accepts but rather that he accepted kiddushin as a precaution in case the shaliach does not carry out his mission. Therefore, the mishna needed to teach us that in this case as well, if the father's kiddushin came first, it is binding. 

Back to the Gemara

The gemara's next discussion focuses on the transition between the father being able to accept kiddushin on behalf of his daughter and the daughter herself having that power. Halakha defines adulthood as the combination of reaching a certain age and having physical signs of maturity. For a girl, this means that she must be twelve years old and have grown two pubic hairs. At this point, she is considered a na'ara. After she attains further signs of physical maturity (see Niddah 47a), she becomes a bogeret. While a girl is a na'ara, her father maintains custodial rights; the girl cannot accept kiddushin for herself, but her father can accept kiddushin for her. When she becomes a bogeret, she is fully independent from a halakhic perspective, and can accept kiddushin for herself. At this time, her father no longer has a right to act on her behalf.

The gemara begins twelve lines down on 79a.

 

 

It was stated: [If] her father [accepted] kiddushin for her on the road and she [accepted] kiddushin for herself in the city, and behold she is a bogeret: Rav said: "Behold, she is a bogeret in front of us," and Shemuel said: "We are concerned about the kiddushin of both of them."

איתמר: קידשה אביה בדרך וקידשה עצמה בעיר, והרי היא בוגרת: רב אמר: הרי היא בוגרת לפנינו, ושמואל אמר: חיישינן לקידושי שניהם.

The gemara raises the following scenario: the father accepts kiddushin for his daughter in one place, and the girl herself accepts kiddushin somewhere else on the same day. Upon examination, the girl is found to display the physical signs of bagrut (the state of being a bogeret). Rav rules that since she is a bogeret now, her kiddushin is valid and the kiddushin that her father accepted is not. Shemuel argues that it is unclear when exactly she became a bogeret; perhaps it was only after the father accepted kiddushin that she attained the signs of bagrut. Since we cannot be sure when her transition from na'arut to bagrut took place, we must take into account both possible betrothals, like the case in our mishna.

The gemara continues to examine this issue.

 

 

When? If you say within six [months of becoming a na'arah], regarding this does Rav say, "behold she is a bogeret in front of us?" Now is when she has become a bogeret! Rather after six, regarding this does Shemuel say we are concerned for the kiddushin of both of them? But Shemuel said: "There is but six months between na'arut and bagrut!" No, it is needed, for when he betrothed on the day of the completion of six [months of na'arut]; Rav said: "Behold she is a bogeret in front of us, from the fact that she is now a bogeret, in the morning she was also a bogeret;" and Shemuel said: "Now is when she has produced signs."

אימת? אילימא בתוך ששה, בהא נימא רב הרי היא בוגרת לפנינו? השתא הוא דבגרה! אלא לאחר ששה, בהא נימא שמואל חיישינן לקידושי שניהם? והא אמר שמואל: אין בין נערות לבגרות אלא ששה חדשים בלבד! לא צריכא, דקדיש בההוא יומא דמשלים ששה; רב אמר: הרי היא בוגרת לפנינו, מדהשתא בוגרת, בצפרא נמי בוגרת; ושמואל אמר: השתא הוא דאייתי סימנים.

The gemara proceeds to examine the particulars of the machloket (disagreement) between Rav and Shemuel. There is an important factor that was not mentioned in the initial presentation of the machloket: time. The assumption is that it generally takes about six months for a girl to proceed from na'arut to bagrut. That being the case, it is not immediately obvious when a case could arise that would lead to the dispute between Rav and Shemuel. If it is still within six months of her having become a na'ara, Rav's position seems unreasonable. It is unusual for the transition to take less than six months. At this stage, the girl has a chazaka (the status quo) of being a na'ara, and she maintains this status until we know for certain that it has changed. Thus, even if she is examined and found to have signs of bagrut in the evening, it is only from that time that we assume she is a bogeret; we do not assume that she was necessarily already a bogeret that morning. However, if six months have already passed, Shemuel's opinion seems difficult in light of Shemuel's declaration that it takes no longer than six months for a girl to proceed from na'arut to bagrut!

The gemara explains that the discussion concerns the very day which completes the normal six month na'arut process. It is true that she currently has the status of a na'ara, which extends until shown to be obsolete. However, she has already reached the anticipated end of this period. It is under these conditions that Rav and Shemuel debate whether the fact that she has signs of bagrut in the evening indicates that she should retroactively have the status of a bogeret that morning. Of course, the ramifications of this dispute are significant. If we consider it certain that she was already a bogeret in the morning, the kiddushin her father accepted is invalid while the one that she accepted is valid. If we are concerned that perhaps she was still a na'ara in the morning when her father accepted kiddushin on her behalf, we must take that first kiddushin into account.

It should be noted that the two discussions we have seen thus far in this gemara represent different types of common Talmudic progressions. The gemara begins by clarifying a point directly related to the mishna; why there is a need for both of the mishna's rulings. It then moves on to discuss an issue that is not a direct outgrowth of the mishna but is related in that the case hinges on the transition from na'arut to bagrut, and is similar to the cases in the mishna in that we have to decide which of two attempted kiddushins is relevant.

Our gemara has set the stage for a much fuller exploration of the topic of chazaka, with which we will continue next week.