A Father's Privileges With Respect to His Daughter
Translated by David Silverberg
1. The Source of the Father's Rights
The mishna (46b) brings a list of different areas in which a father enjoys rights or privileges with respect to his daughter: "A father has privileges with regard to his daughter, in her kiddushin – be it kesef, shetar, or bi'a. He has rights to what she finds, what she produces, ability to annul her vows, and he receives her get [on her behalf]." According to the Gemara's conclusion, we cannot derive these privileges from the verse, "bi-n'ureha beit aviha" – "during her youth, in her father's home" (30:17). Rather, each individual right enjoyed by the father is extracted from a different source:
"[Kiddushin] through kesef – from where [do we learn that the father enjoys rights]? Rav Yehuda said: The verse states, 'she [the indentured maidservant] goes free, without money' – there is no money for this master [when sending away the girl under his charge], but there is money for a different 'master.' To whom does this refer? Her father… From where do we know that a daughter's work goes to her father? As it says, 'Should a man sell his daughter as a maidservant.' Just as a maidservant's work belongs to her master, so does a daughter's work belong to her father. Why do I need [these verses as a source]? We can learn this from 'bi-n'ureha beit aviha'! Because that [verse] deals with the context of the annulment of vows. And if you claim that we should derive from there, we cannot derive monetary laws from 'issur.' And if you claim that we should derive this from kenas [the fine paid to the father of a victim of rape or seduction], we cannot derive purely monetary payments from kenas payments. And if you claim that we should derive this from boshet and pegam [compensatory payments for the daughter given to the father], boshet and pegam are different because the father, too, is involved with them [he, too, suffered the losses compensated by these payments]."
In Masekhet Bava Kama (87a), however, the Gemara records: "Rabbi Elazar asked Rav: One who inflicts physical damage on the young daughter of others, to whom does he pay compensation? Do we say that since the Torah granted the "shevach ne'urim" (benefits of a na'ara) to the father, damage compensation also goes to the father?" Rashi there explains that the principle of "shevach ne'urim le-aviha," that a father receives the earnings of a na'ara, including her kesef kiddushin, is derived from the verse, "bi-n'ureha beit aviha." In other words, according to Rashi, the source for the father's rights to the daughter's kesef kiddushin is this verse, which appears, as mentioned, in the context of hafarat nedarim. Tosafot (s.v. keivan) reject this interpretation of the Gemara based on our sugya, which established that we cannot reach conclusions regarding a father's monetary rights with respect to his daughter based on halakhot of issurim, such as hafarat nedarim. Similarly, explaining the father's rights to his young daughter's metziot (lost items that she found), Rashi in Bava Metzia (12a) writes, "His young daughter – in Ketubot (46b) we derive it from verses, that regarding both a ketana and a na'ara, 'kol shevach ne'urim le-aviha.'" Once again, Rashi attributes the father's monetary rights with respect to his young daughter to this halakha of "shevach ne'urim" derived from the verse, "bi-n'ureha beit aviha." The problem, of course, is that the Gemara explicitly denies the application of this verse to the realm of mammon. These two comments of Rashi thus appear to directly contradict our sugya, and require explanation.
The Rambam, too, brings the verse of "bi-n'ureha beit aviha" as a source for a father's general rights over his daughter. In his commentary to our mishna, the Rambam writes: "A father has privileges with regard to his daughter, in her kiddushin – be it kesef, shetar, or bi'a – these are the matters regarding which a father has rights so long as his daughter is a na'ara, because it says, 'bi-n'ureha beit aviha,' and it was transmitted to us through tradition that 'kol shevach ne'urim le-aviha.'" Likewise, commenting on the mishna dealing with a daughter's metzia, the Rambam writes, "So long as the daughter is a na'ara, her metzia goes to her father… because all shevach ne'urim goes to the father, as explained in the fourth chapter of Ketubot." How can we reconcile these comments with our Gemara?
In the third chapter of Ketubot (39b), the Gemara establishes that a daughter does not have the power to waive the kenas payment in a case of pituy (seduction), since she is under her father's authority: "To what may we compare a mefuta [victim of pituy]? [Perhaps} to a person who said to his friend, 'Tear my garments and you will be exempt [from damage payment].' "My [garments]'? It belongs to her father [and we thus cannot make such a comparison]." Rashi there explains, "It belongs to her father – for later (46) we derive that all shevach ne'urim belong to her father, so how can she forego?" These comments are difficult not only because they contradict our sugya (like the earlier passages cited from Rashi), but also in and of themselves. The verse referring to oness and mefateh payment expressly posits, "The man who slept with her shall give the girl's father fifty silver coins." Why, then, did Rashi attribute the father's rights to this money to the halakha of shevach ne'urim le-aviha? There is an explicit verse in the Torah to this effect!
We see clearly from this question that although the Torah itself awards the father the mefateh payment, nevertheless, Rashi felt that after the Torah issued this provision, this payment now joins all the father's other rights under the general category of "shevach ne'urim." Thus, the positions of both Rashi and the Rambam are, indeed, grounded in our sugya, only they adopted a different interpretation. According to Tosafot, the Gemara concluded that the verse, "bi-ne'urah beit aviha" applies only to hafarat nedarim, as we cannot extrapolate halakhot from the world of issurim to be applied in any way to monetary matters. The Gemara therefore brings a separate source for each area where the father enjoys privileges, such that in the end, we have many different halakhot awarding a father various rights with respect to his daughter. Rashi and the Rambam, by contrast, understand that even in conclusion, we have one, broad concept of "shevach ne'urim le-aviha," and the Gemara discusses the scope of this concept. Does it apply only to hafarat nedarim, or can it be extended to additional areas as well? In their view, once we establish a father's privileges in other areas, we broaden the parameters of the father's privileges categorized as "shevach ne'urim" which is derived from "bi-n'ureha beit aviha". We conclude that this concept includes kesef kiddushin, oness and mefateh payments, the daughter's work, metzia, etc. It all combines under this single, general category of shevach ne'urim which the Torah awarded to the father.
2. The Nature of the Relationship Between the Father and his Daughter
Let us now turn our attention to the nature of the relationship between the father and his daughter. We will begin with the ability awarded to the father to receive a get on behalf of his daughter. The mishna in Gittin (64b) records an argument between R. Yehuda and the Chakhamim as to whether a na'ara can receive a get directly, or whether the father must receive it for her. The mishna makes no explicit reference to the question of whether or not a daughter may receive a get as a minor; it deals only with a na'ara. This question divided the Rishonim into two camps. In fact, Rashi changed his mind on this issue (see Rashi, Kiddushin 43b s.v. na'ara, Gittin 64b s.v. hi), and the Rishonim even argued as to which position was the final one taken by Rashi and therefore more authoritative.
We can explain the two sides of this dispute in light of the Gemara's interpretation of the respective positions of R. Yehuda and Chakhamim:
"Around what does their dispute revolve? The Rabbanan hold that the Torah granted her an 'extra hand'; Rabbi Yehuda holds that in the presence [i.e. lifetime] of her father, her own hand is powerless."
According to Tosafot, Chakhamim maintain that the basic "yad" - power or authority over the daughter's marital status - is that of the daughter. The extra yad awarded to her is that of the father, who may accept the get on her behalf due to his role as her guardian. Consequently, if a girl possesses the maturity necessary to receive a get, there is no reason to deny her the ability to accept it personally. Therefore, once the daughter is aware of the ramifications of divorce, she is sufficiently mature to receive the get, even though she may still be a minor.
The Ramban, however, suggested an inverse interpretation of this Gemara. He maintained that the basic yad is that of the father. Only upon reaching adulthood is an extra yad awarded to the na'ara herself. Therefore, as long as she is a minor, she has no yad at all and hence, no possibility of accepting a get.
These two positions reflect two basic ways of viewing the relationship between the father and daughter. According to Tosafot, the father's status as guardian is a secondary one. The essential party is the daughter. However, the tables are turned according to the Ramban. The father is the primary party authorized to receive the divorce. The daughter's role is secondary and perhaps only auxiliary.
The debate between Tosafot and the Ramban is regarding the status of a minor, who generally is incapable of independence. What about the case of a na'ara, who is legally considered an adult, but is still under the jurisdiction of her father? Our Gemara suggests that a distinction can be made between the two:
"Perhaps I'll say that this is true only with regard to a minor, who has no 'yad'; but a na'ara, who has a yad, should betroth herself and then receive the money."
The Gemara argues that perhaps the father should be awarded the kiddushin money only if he married off his daughter while she was still a minor. However, a na'ara can marry herself and therefore may perhaps retain the kesef kiddushin. According to the Ritva, the reason the father receives the kesef kiddushin when he marries off his daughter while a minor, is because he is considered the ba'al davar:
"We answer, once the father receives kiddushin on her behalf, as it says, 'I gave my daughter to this man,' should she receive the money? Meaning, once the Torah granted him this ability to marry her off against her will and without her knowledge, he is considered the makneh [the one executing this transformation of status] and the ba'al davar, and she is considered his property in this regard. Since he is the makneh, the money must be his, for if she would receive the money, she would be considered the ba'al davar and the father would be but her agent. If this were true, how could he marry her off against her will?"
This would explain the Gemara's suggestion that when marrying by herself, the daughter keeps the money. As opposed to a minor, the na'ara herself is considered the ba-alat davar and can marry independently of the father. However, the Gemara concludes that even in the case of a na'ara the father receives the kesef kiddushin. At first glance, this conclusion would seem to indicate that the father is in fact the actual ba-al davar even when a na-ara marries herself. On the other hand, one can counter that the father is merely awarded the money due to the clause of "shevach ne'urim," even though the daughter is considered the actual ba-alat davar (see Tosafot Rid, Kiddushin 3b).
These variant positions on the status of a na'ara vis-a-vis her father, may find expression in a debate between R. Yochanan and Reish Lakish in Masekhet Kiddushin (43b). According to Reish Lakish, the Chakhamim allow a na'ara to marry herself. R. Yochanan, however, argues, claiming that all agree that regarding kiddushin, only the father can marry off the daughter, so long as she is in his jurisdiction. Reish Lakish maintains that once she becomes a na'ara, the daughter has the independent ability to marry. R. Yochanan may reject this position because he views the father, not the daughter, as the ba-al davar capable of performing kiddushin. (The question of the daughter's status as a na'ara is also the key to understanding the dispute between the Rambam and the Ra'avad, Hilkhot Na'ara Betula 3:13-15; see Chiddushei Rabbenu Chayim. See also Rambam, Hilkhot Avadim 3:15.)
3. The Root of the Father's Status
Before concluding, let us take another look at the aforementioned discussion in Bava Kama, regarding payments for damage inflicted upon a ketana:
"Rabbi Elazar asked Rav: One who inflicts physical damage on the young daughter of others, to whom does he pay compensation? Do we say that since the Torah granted "shevach ne-urim" to the father, damage compensation also goes to the father – why, because her monetary value has been depreciated? Or, perhaps the Torah awarded to him only "shevach ne'urim" [such as kiddushin money] because if he so desired, he could give her over [in marriage] to someone suffering from boils. But damage payment – since he may not inflict damage upon her if he so desired, the Torah did not award it to him." If all the cases where the Torah grants the father rights with respect to his daughter combine into one general category, we understand full well the side that the father receives the damage payments even though we have no specific source to this effect. This is true not only according to Rashi and the Rambam, who, as we have seen, maintain that all the father's privileges are ultimately included under the general category of "bi-ne'ureha beit aveha" introduced in the section of hafarat nedarim. Even if we accept the view of Tosafot (s.v. keivan), we must still concede that all the father's privileges are included under the general title of "shevach ne'urim," even if each one must be derived independently.
Moreover, it would appear that even according to the side that "shevach ne'urim" applies only to oness and mefateh payments, it still reflects a general principle rather than merely a collection of unrelated privileges. Rabbi Elazar, who posed the question in Bava Kama, questioned the precise definition of this principle. It stands to reason that according to the side that the father has rights even to his daughter's damage payments, the term "shevach ne'urim" describes a general privilege that a father enjoys which is not specifically connected to his ability to marry off his daughter. Accordingly, it would seem, the Torah appointed the father as a type of "apotropus" (guardian) assigned with the task of caring for the daughter's needs. Indeed, the Gemara (Ketubot 49a) states, "Rabbi Yehuda says, there is a mitzva to feed one's sons, not to mention his daughters, because of the humiliation [they would otherwise suffer]." A father bears an obligation to give particular attention to the needs of his daughter. By force of this role, the father earns right to her work, which includes the right to sell her as a maidservant, her metzia, and even those payments that come on her account – such as oness and mefateh fines, damage compensation, and kiddushin money.
On the other hand, according to the side that the father's privileges relate to his ability to marry her off as he chooses, it would seem that the basis of the father's privileges is limited to this area. Indeed, Rav Shimshon Refael Hirsch writes in his commentary to the beginning of Parashat Mishpatim, "The intended eventuality of marriage is the predominant idea of the 'sale.' The girl only remains in service while she is not yet of marriageable age. As soon as she becomes marriageable the master must either marry her or let her go free without further ado." He repeats this idea in his commentary to the parasha of nedarim. Relying on the position of some Rishonim that a husband can annul only "nidrei inuy nefesh" (vows involving self-denial which effect the marriage relationship), he writes, "The power of veto conferred on a father is only out of consideration for her future calling of wife."
In the Gemara's conclusion, this issue is subject to a debate between Rabbi Yochanan and Reish Lakish: "Reish Lakish similarly said, the Torah granted the father only 'shevach ne'urim.' Rabbi Yochanan said, even [compensation for] a bruise. Do you really mean a bruise? Even Rabbi Elazar asked only with regard to physical damage, which depreciates her value. But regarding a bruise, which does not depreciate her value, he never asked! Rabbi Yossi Bar Chanina said, [we meant a case where] she was bruised in the face, and her value was thus depreciated." On the surface, it seems that Rabbi Yochanan holds that a father has privileges to his daughter's damage payment, whereas Reish Lakish argues. Indeed, this is how Tosafot (B.K. 87b) seem to have understood the Gemara.
We may, however, suggest a different explanation. Rabbi Yochanan speaks of a "petzia," a bruise, as opposed to "chabala" – physical damage. Although Rabbi Yossi Bar Chanina ultimately clarifies that we deal with a bruise on her face, which lowers her value as does chabala, it is still noteworthy that Rabbi Yochanan chose to speak of a petzia and did not mention the more common case of chabala. Furthermore, we learn in Masekhet Ketubot (43a), "Rabbi Yehuda said in the name of Rav, a daughter fed by the brothers – her work goes to herself. Rav Kahana said, what is the reason? Because it says, 'You shall inherit them [servants] to your sons after you' – they go to your sons, but your daughters do not go to your sons. This teaches that a person does not inherit to his son his privileges with respect to his daughter. Rabba challenged this: Perhaps the verse speaks only about cases of the daughter's seduction, fines, and physical damage? And indeed, Rav Chanina taught, the verse speaks of the daughter's seduction, fines and chabalot. Chabalot [is awarded to the father]? – this is personal pain [compensation for which the Torah never awarded to the father]! Rabbi Yossi Bar Chanina said, [we deal with a case where] she was bruised in the face." It would appear from the simple reading of this gemara, that according to Rav Yossi Bar Chanina, even though a father does not have rights to payment for his daughter's chabala, he does receive the money for the compensation of facial bruises. Apparently, this is the only case when a father receives the daughter's compensation for her physical harm.
The explanation seems to lie in the fact that the monetary loss resulting from a facial bruise involves her ability to get married, even though this bruise does not reduce her value as a laborer one iota, as it does not impinge on her working capabilities. Therefore, we might suggest that Rabbi Yochanan agrees with Reish Lakish that the father's privileges result primarily from his ability to marry her off to whomever he pleases. They argue only with respect to the definition of this privilege. According to Reish Lakish, the daughter herself is the true ba'alat davar with regard to the kiddushin; the father is merely an apotropus of sorts working on her behalf. Therefore, the daughter receives the compensation for the loss of kesef kiddushin resulting from her chabala. Rabbi Yochanan argues on this very point and claims that the Torah afforded the father the status of primary ba'al davar with respect to his daughter's kiddushin; consequently, he has rights to the compensation of the loss of kesef kiddushin.
According to our understanding, this debate between Rabbi Yochanan and Reish Lakish run parallel to their argument in Kiddushin, where Reish Lakish holds that a na'ara can (according to Chakhamim) betroth herself, even during her father's lifetime. As we mentioned previously, this position indicates the daughter's status as the primary ba-alat davar of kiddushin, with the father playing only a supportive role. Rabbi Yochanan on the other hand, claims that according to all views, a na'ara lack this capability, which reflects the primary role played by the father in marrying off his daughter.