Shiur #24: The Status of a Na'ara Regarding Marriage and Divorce
GEMARA KIDDUSHIN PEREK BET
Shiur #08: The Status of a Na'ara
Regarding Marriage and Divorce
by Rav Yair Kahn
A na'ara is a girl who has already become bat-mitzva but is still in the custody of her father. On the one hand, she possesses the maturity and mental criteria demanded by halakha to get married; however, her father is still her legal guardian, and may betroth her, even against her will. This ambivalent situation poses a dilemma: does a na'ara have the independence required to get married without the permission of her father? This shiur will explore relevant aspects of the relationship between father and daughter in general, with the specific case of na'ara in mind.
The gemara in kiddushin quotes conflicting opinions regarding the ability of a na'ara to get married without her father's consent. The focus of the debate is a mishna in gittin which states:
"A betrothed na'ara - both she and her father can receive her get [to effectuate her divorce]. Rabbi Yehuda says: Two hands cannot enjoy simultaneous powers. Instead, [only] her father can receive her get."
Rav Yochanan and Reish Lakish argue as to whether this debate can be applied to kiddushin. According to Reish Lakish, kiddushin is identical in this regard to gittin. Hence, only R. Yehuda denies the na'ara the necessary independence to marry. The majority opinion dissents, awarding the na'ara such independence. Rav Yochanan argues, claiming that R. Yehuda and Chakhamim argued only with respect to gittin; regarding kiddushin, however, there is no tanaitic dispute. The unanimous decision adopted by the Tanaim is that a na'ara lacks the independence to marry. Before discussing the issue of kiddushin, let us begin with the gemara's starting point - the debate between the Chakhamim and R. Yehuda regarding geirushin.
The mishna specifically discusses the case of a na'ara, and addresses the question as to whether a na'ara can receive a get directly, or if the father must receive it for her. There is no explicit reference to the question of whether or not a daughter may receive a get as a minor. 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 hee) and the Rishonim even argued which position was the final one taken by Rashi and therefore more binding.
The position that a minor can receive her own get is based on a berayta quoted in a later sugya (44b):
"A minor who said, 'Receive my get for me' - it is not a [valid] get until the get reaches her hand."
Rava cites this berayta in an attempt to prove that a na'ara, as opposed to a minor, can appoint a shaliach to receive her get. In any event, the simple reading of the berayta indicates that a minor becomes divorced upon personally receiving the get. Rav Nachman ultimately rejects Rava's reading of the berayta, but for a reason unrelated to our discussion. Therefore, some Rishonim concluded that a minor, though still in the custody of her father, may receive her own get. Many other Rishonim refuted this proof, arguing that in the final analysis, after Rav Nachman modified the berayta, there is no longer any source to support this position.
We can explain the two sides of this dispute in light of the gemara in Masekhet Gittin (64b) which explains 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.
However, the Ramban 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.
Based on his understanding, the Ramban offered a novel interpretation of the sugya we noted previously as a source for the position that a minor may receive her own get. We already mentioned that Rava and Rav Nachman argued whether or not a na'ara can appoint a shaliach to receive her get. Rava maintained that a na'ara has an independent yad which enables her to appoint a shaliach to receive a get. However, the halakha follows the view of Rav Nachman, who argued that only the father may appoint a shaliach. The Ramban suggested that Rava and Rav Nachman debate the basic nature of the relationship between father and daughter. Rav Nachman's position is based on the understanding that the main yad is that of the father and the daughter is merely an arm of the father. Therefore, it stands to reason that the na'ara is incapable of appointing a shaliach, since she lacks the required independence and authority. Rava, on the other hand, who entertained the possibility that a na'ara can appoint a shaliach, argued that the yad awarded to the na'ara reflects her independent status. Therefore, Rava, and only Rava, was able to suggest an interpretation of the berayta by which a minor may receive her own get. However, according to Rav Nachman, this explanation of the berayta is impossible and the berayta must be reinterpreted accordingly.
Armed with this information, we are now ready to discuss the issue of kiddushin. For the moment, we will assume that our discussion applies only to a na'ara who has the necessary intelligence to marry. (The possibility that a minor may betroth herself will be discussed in shiur #10). Reish Lakish's position seems very logical. If a na'ara has a yad, which reflects independent status, for gittin, why should kiddushin be any different? Nevertheless, Rav Yochanan insisted that a na'ara in her father's custody cannot marry herself.
Moreover, R. Yochanan's position should be inspected in light of the sugya at the beginning of Masekhet Kiddushin (3a) which states as follows:
"This refers only to a minor who does not have a yad to accept kiddushin; but a na'ara, who has a yad to accept kiddushin, let her betroth herself and receive the money!"
At first glance, this gemara argues with R. Yochanan, insofar as it allows a na'ara to betroth herself. The Tosafot HaRosh in fact claims that this sugya is in accordance with the opinion of Reish Lakish, even though the halakha accepts R. Yochanan's position. However, this solution is difficult to accept. The Penei Yehoshua resolves this question differently. He claims that the passage at the beginning of Kiddushin merely expresses an initial suggestion which is later rejected, when the gemara concludes that the kesef kiddushin always goes to the father. Thus, the gemara's conclusion is indeed consistent with the opinion of R. Yochanan. However, this approach assumes that if a daughter is mekadesh herself the father can have no rights to the kesef kiddushin. This position is far from simple and was treated in detail in our study of the first perek (shiur #5).
In order to understand R. Yochanan's position and to see how it can accommodate the gemara's comment at the beginning of Masekhet Kiddushin, let us analyze the distinctions raised by the gemara between gittin and kiddushin. The gemara suggests two possible differences between these two processes:
"Rabbi Yossi the son of Rabbi Chanina said: what is the reason of Rabbi Yochanan's position within the Rabbanan's view? Geirushin, which brings her into her father's custody - both she and her father [can accomplish]. Kiddushin, which releases her from her father's custody - only her father [can accomplish], not her." (Kiddushin 43b)
"This is what was stated: Rabbi Yossi the son of Rabbi Chanina said: what is the reason of Rabbi Yochanan's position within the Rabbanan's view? Kiddushin, which requires her consent - only her father [can accomplish], not her; geirushin, which can occur even against her will - both she and her father [can accomplish]." (Kiddushin 44a)
The gemara concludes that both are viable interpretations. Let us therefore take a closer look at each.
The first interpretation distinguishes between kiddushin, which removes the daughter from the father's custody, and gittin, which returns her to her father. According to this approach, there is no difference between gittin and kiddushin regarding the basic status of the daughter. In both, we can claim that she has an independent yad, as suggested by the position of Chakhamim. The question involves the practical possibility of her wielding her power. Regarding gittin, which yields no negative effect vis-a-vis her father, she is allowed to utilize her yad, which reflects her independent status. However, concerning kiddushin, she is unable to express her independence, as it comes at her father's expense. She cannot marry herself if by so doing the rights of the father as guardian are compromised.
The second interpretation offered by the gemara distinguishes between kiddushin, which necessitates the woman's da'at (knowledge and consent), and gittin, which can be effected without her consent. At first glance, it is unclear why this consideration would impact upon the daughter's inability to marry. Since a na'ara possesses the required intelligence, why should kiddushin be any different from gittin?
Upon further reflection, however, the gemara's argument becomes clear. According to R. Yochanan, the Chakhamim never rejected R. Yehuda's argument that "ein shetei yadayim zokhot ke-echad" - "two hands cannot enjoy simultaneous powers." However, they claimed that this argument bears relevance only with regard to kiddushin, but not to geirushin. In geirushin, where the get is imposed upon the woman, the possession of a yad does not reflect the status of "ba'al davar." A yad, with respect to get, is merely the address to which the get must be delivered. Therefore, the yad of the father does not interfere with that of the daughter. However, regarding kiddushin, which demands consent, the woman (or, in our case, father) is a ba'al davar. And it is impossible to have two independent ba'alei davar regarding the same kiddushin. Therefore, since we know that the Torah conferred upon the father the ability to betroth his daughter, we must also conclude that he has been awarded the exclusive title of ba'al davar in this regard. Hence, the daughter lacks the authority to marry herself, so long as she remains in her father's custody. (See Yerushalmi Gittin 6:2.)
According to his interpretation of the gemara, the two explanations offered for R. Yochanan's opinion correspond to the two basic positions taken by the Rishonim regarding the status of a na'ara in her father's custody. One explanation grants the daughter authority but prevents her from exercising this authority at her father's expense. The other explanation denies the independent authority of the daughter so long as she remains in her father's custody.
The halakha follows the opinion of R. Yochanan, who maintains that a daughter cannot betroth herself independently. Nevertheless, several practical, halakhic issues will hinge on the specific model one chooses to explain R. Yochanan. If basically the daughter lacks the authority to marry, betrothal could only result from a positive act of the father, and passive consent would not suffice. However, if the daughter has the authority to marry, and is prevented only so as not to undermine the father's rights, passive consent of the father may be sufficient to allow the daughter to marry herself. It is even possible that the father's permission can be granted afterwards. This position is found in the Tosafot Rid (46a):
"It appears to me to explain that they argue only with regard to a minor who lacks the prerequisite knowledge to become betrothed; we therefore need the consent and knowledge of the father, and we need this consent to occur at the time of the kiddushin But with respect to a na'ara, who possesses the required intellectual capacity, although Rabbi Yochanan stated that according to all views only her father [can accept kiddushin on her behalf], and not her, nevertheless, once the father consents, she is betrothed, even if no formal engagement has been arranged because we do not require the father's consent at the time of the kiddushin; it rather suffices that he does not protest. Once he consents and does not protest, the kiddushin is valid, even if he did not know [of the betrothal] at the time it occurred."
At this point, explaining the gemara at the beginning of Kiddushin according to R. Yochanan is a trivial task. According to the Tosafot Rid, even R. Yochanan admits to the possibility that the daughter can betroth herself with her father's consent. Therefore, the gemara asks whether the father has rights to the kesef kiddushin even under such circumstances. Nevertheless, if the father refuses, the daughter is unable to betroth herself according to R. Yochanan.
Sources for shiur #9
1. Kiddushin 44a "tnan ha-ish mikadesh lo yachzor."
2. Gittin 78a "amar Rava katav la get bikafut," Rosh 8:5 "amar Rava ."
3. Ramban 44b "ha di-amrinan dizakhin li-adam hu," Rashba 19a vi-akati lo neicha dichatzer hamihalechet hee."
1. According to our sugya, who is the primary recipient of the get, the father or the daughter?
2. What two problems does the gemara raise which prevent a servant from functioning as the domain of the master? How is each of these problems resolved?
3. Why did our sugya ignore the problem of mihalechet regarding the application of chatzer to the daughter?
4. How can the Ramban consider a minor as the domain of her father in light of our gemara and the gemara in Gittin?