Shiur #25: May A Na'ara appoint a Shaliach?

  • Rav Yair Kahn

GEMARA KIDDUSHIN – PEREK BET

 

Shiur #9: May A Na'ara appoint a Shaliach?

by Rav Yair Kahn

 

 

            In the previous shiur, we discussed the case of a na'ara who is in the custody of her father. We developed two ways of viewing the status of the daughter regarding gittin and kiddushin. According to one approach, the father, whom the Torah appoints as the daughter's guardian, is the only party empowered with the authority to betroth her or receive her get. The second approach maintains that the daughter herself assumes the lead role, while the father is merely a supporting actor by virtue of his role as guardian.

 

This week we will examine this issue within the context of a revealing discussion that took place between Rava and Rav Nachman. Rava asked Rav Nachman if a na'ara has the ability to appoint a shaliach to receive her get. Initially, the gemara explained that this question hinges on the daughter's status as reflected by her ability to receive her own get:

 

"Is she similar to her father's arm, or to her father's domain - similar to her father's arm, such that just as her father can appoint a shaliach, so can she, or similar to her father's domain, such that she is not divorced until the get reaches her hand?"

 

            The gemara then questions the possibility that the na'ara resembles the father's domain (chatzer) because one cannot acquire an object via a chatzer that is not under his control. (We will discuss this issue at length a bit later.) The gemara therefore rejects this formulation in favor of a more plausible one:

 

"In truth, it is clear that she is similar to her father's arm, and this is the question: is she as powerful as her father's arm in that she can appoint a shaliach, or not?"

 

In conclusion, Rav Nachman responded that a na'ara lacks the ability to appoint a shaliach.

 

Regarding the question of the daughter's status vis-a-vis her father, this sugya seems to explicitly conclude that the father is the primary receiver and the daughter plays but a secondary role. This is clearly indicated according to the initial formulation of the debate:

 

"Is she similar to her father's arm, or to her father's domain?"

 

According to Rav Nachman's conclusion, too, that only a father may appoint a shaliach, whereas the daughter lacks this authority, the daughter appears to play a secondary role. Admittedly, one could suggest that according to Rava, who entertains the possibility of a na'ara's appointment of a shaliach, the daughter is the primary receiver. As we noted in the previous shiur, this is in fact the interpretation of the Ramban. However, this explanation is not supported by the formulation offered to explain Rava:

 

"In truth, it is clear that she is similar to her father's arm, and this is the question: is she as powerful as her father's arm in that she can appoint a shaliach, or not?"

 

This suggests that even Rava concedes that the daughter is no more than an "arm" of the father.

 

This conclusion accommodates the position viewing the father as the primary receiver, but, as we noted in the previous shiur, many Rishonim consider the yad (power or authority over the daughter's marital status) of the daughter as the basic yad, while the father may also receive the get for the daughter as her guardian. How are we to interpret our gemara so as not to contradict this position?

 

            We will return to this problem later in this shiur. At this point, we will focus our attention on a seemingly unrelated issue that appears in our sugya. We noted that the gemara initially suggests that the na'ara is to be considered the domain (chatzer) of her father. This notion is rejected because one cannot make an acquisition through a chatzer that is not under his control. As the daughter has a mind of her own, she, and not her father, enjoys control over items in her possession.

 

This problem is raised in another sugya regarding the possibility of divorcing a woman by placing a get in her servant's hand. The gemara in Masekhet Gittin (78a) states:

 

Rava said: If he wrote her a get and placed it in her servant's hand, then if he was asleep while she guarded him, then the get is valid; if he was awake, it is not a get, as this is considered a 'chatzer ha-mishtameret she-lo le- da'ata' [a domain not fully guarded in accord with the owner's knowledge].  Why is the get valid if he sleeps and she guards him?  This is a 'walking domain,' and a walking domain cannot effect acquisition!  And if you would argue that this case is different because he [the servant] sleeps [and thus we would not consider him a 'walking domain'], did not Rava say that whenever one cannot acquire when he walks, neither can he acquire when he stands or sits [and thus even a sleeping servant must be considered a 'walking domain']?  The halakha is that [Rava referred to a case] when he is bound [and therefore has no possibility of mobility]."

 

The gemara raises two separate problems. First, a servant cannot function as a chatzer of his owner because he has a mind of his own; therefore, the chatzer is not under the control of the owner. Secondly, a chatzer must be immobile; a chatzer that is even potentially mobile is a chatzer mehalechet and cannot function as a chatzer to effect an acquisition.

 

Many Rishonim claim that these two problems demand independent solutions. In order to solve the problem of a chatzer mehalechet, which applies to an animal as well as a servant (see B.M. 9b), one must bind the chatzer such that it has no possibility of moving. However, when unbound, even asleep, it is potentially mobile and considered a chatzer mehalechet. Regarding an animal, this is sufficient. However, with respect to a servant, who has a mind of his own, despite being bound, he is considered a chatzer she'eina mishtameret le-da'ata. In order to become a chatzer mishtameret, a fully "guarded" chatzer, he must be asleep. In conclusion, therefore, a servant can function as a chatzer only if he is both bound and asleep.

 

From this we can conclude that chatzer mehalechet and chatzer she-eina mishtameret le-da'ata are independent problems (see Rosh, Gittin 8:5). The problem of mehalechet concerns the parameters of a chatzer with respect to kinyanim. The idea of acquiring objects located in one's domain is derived from the ability to acquire objects placed in one's hand, and can be extended to other forms of property as long as they parallel one's hand in terms of their basic characteristics. Therefore, property with the potential for mobility independent of the owner cannot be considered a chatzer.

 

The problem of eina mishtameret le-da'ata can be viewed as the general problem of eina mishtameret (see B.M. 11a), which applies to any chatzer which is not enclosed by a fence and is therefore unguarded. However, the phrase "eina mishtameret le-da'ata" indicates that we deal with a different problem. Moreover, the application to a servant who is bound hand-and-foot but awake clearly shows that the problem is not rooted in the owner's lack of physical control. Therefore, it seems reasonable to suggest an alternate explanation. Perhaps, our rabbis felt that a human being, even if he is someone's property, can never be considered the domain of the owner, due to his independent will and consciousness. As long as he is awake and aware, he is existentially independent, even while physically and monetarily under the control of another. So long as he retains this independence, we cannot view him as totally subservient to another and he cannot function as his chatzer. However, once his consciousness fades and he is overcome by sleep, we can temporarily ignore his independence and view him merely as the property of the owner.

 

In summary, we solve the problem of independent mobility by tying the slave, while slumber is enlisted to enable us to ignore his independent consciousness. 

 

Based on this analysis, I was troubled by the question posed in our sugya. Why did our gemara reject the application of chatzer to the daughter because she is not mishtameret le-da'at aviha? Why not raise the more general and obvious problem of mehalechet? I was also perplexed by a comment of the Ramban in the sugya of "ketana she-nitkadesha she-lo le'da'at aviha" (a minor who was betrothed without her father's knowledge - 44b):

 

"Although she is a minor and does not possess a yad, this applies only after her father's death; in her father's lifetime, however, she is his yad.  She is thus no less than a chatzer, which acquires on one's behalf without his knowledge when it is in his best interest.  Therefore, the betrothal takes effect when he gives his consent."

 

The Ramban explains that the daughter, while still a minor, can be considered the arm of her father and is no worse than his chatzer. At first glance, this statement is in stark contrast to our sugya, which rejects the possible application of chatzer to the daughter. Even if we suggest that there is no problem of mishtameret shelo le-da'at aviha with respect to a minor, who is not considered an independent 'bat da'at' (intellectually capable party) according to halakha, we are still left to ponder why she is not disqualified as a chatzer mehalechet (see Rashba to 19a).

 

            In light of the above, I would suggest that our sugya never intended to apply chatzer in the narrow sense to the case of a daughter. After all, no one ever claimed that a daughter is considered the monetary property of the father and thus comparable to a servant, who can function as the domain of the owner. When the gemara suggests that a daughter resembles her father's chatzer, it means that she can be viewed as an address via which the father can receive the get. In other words, the get must be given to the father by virtue of his role a guardian, and one way of delivering the get to him is by placing it in the hands of his daughter.

 

            According to this interpretation, we understand why the gemara never raised the problem of chatzer mehalechet. After all, the daughter does not really function as a chatzer, and therefore the problem of mehalechet cannot apply. Nevertheless, the problem of mishtameret she-lo le-da'at aviha was raised. Based on our understanding, that a human being of independent mind cannot be totally subservient to another, it is reasonable that this problem also prevents a daughter from being viewed merely as the address of her father.

 

If we accept this suggestion, we can easily explain the Ramban's comment, that as long as a daughter is a minor she can function as the arm of her father and is no less than his chatzer. If we interpret the Ramban as referring to kinyan chatzer in the narrow sense, then we cannot understand how this can be applied to a daughter, who is independently mobile. However, if the Ramban means that the daughter, while still a minor, can function as the arm of the father and receive the get on his behalf, then no problem of chatzer mehalechet arises. Furthermore, the problem of mishtameret she-lo le-da'at aviha may also not apply, since we are dealing with a minor, who is not halakhically considered an independent bat da'at.

 

From this perspective, we can reevaluate our sugya. Rava asked whether a na'ara may appoint a shaliach. The initial formulation of the gemara posed the question in the following terms: "Is she similar to her father's arm, or to her father's domain?" According to our understanding, that chatzer aviha refers not to kinyan chatzer in the narrow sense, but rather to an additional address through which the father receives the get, the alternative of yad aviha must be reinterpreted as a distinct option. In other words, ke-yad aviya does not mean “a hand of her father,” which would merely be a paraphrase of "chatzer aviha," but rather “like the hand of her father.” The daughter is not merely a recipient for the father, but an independent recipient of the get similar to her father.   

 

            The gemara rejects the possibility that an adult woman can function as an arm of her father, due to her independent status as a bat da'at. It therefore reformulates Rava's question:

 

"In truth, it is clear that she is similar to her father's arm, and this is the question: is she as powerful as her father's arm in that she can appoint a shaliach, or not?"

 

According to our interpretation, the gemara at this point concedes that the daughter is the independent recipient of the get. At first glance, then, we would assume that the daughter can appoint a shaliach, as well. Nonetheless, the question regarding her ability to do so remains, and Rav Nachman in fact concludes that she cannot.

 

In order to explain Rav Nachman's opinion, let us return to the dispute between Reish Lakish and R. Yochanan discussed in the previous shiur. R. Yochanan granted the daughter the independence to personally receive a get, but denied her the ability to independently be betrothed. We suggested that R. Yochanan accepts the possibility of two independent, passive recipients of a get, but does not allow for the active involvement of two competing ba'alei davar in creating kiddushin.

 

According to the gemara, Reish Lakish argued with R. Yochanan, brandishing a hekesh to claim that the Torah compared kiddushin to geirushin:

 

"Reish Lakish shouted like a crane, 'and she leaves [her first husband]; 'and she marries' [two words juxtaposed to one another in the verse, implying a halakhic parallel between kiddushin and geirushin]. But nobody paid heed to him."

 

But the logic of his claim is unclear.  Did Reish Lakish reject R. Yochanan's position disallowing multiple ba'alei davar? If so, then why is a hekesh required? If he accepted R. Yochanan's claim, how does the hekesh solve this problem?  It therefore seems reasonable that the hekesh was used by Resh Lakish to show that the role of the woman in kiddushin corresponds to her role in geirushin. Regarding both, the woman is not considered a ba'alat davar in the active sense. True, kiddushin differs from geirushin in that it cannot be imposed on the woman against her will as can geirushin. Nevertheless, the woman is merely asked to consent to the kiddushin which is performed solely by the man (see Ran to Nedarim 30a s.v. ve-isha nami). Therefore, according to Reish Lakish, we cannot distinguish between geirushin and kiddushin, as neither involves the problem of conflicting ba'alei davar.

 

            The gemara enlists our mishna, which mentions only the kiddushin of the father or his shaliach, to support R. Yochanan's view. The mishna seems to indicate that the option of the daughter's independent betrothal does not exist. The gemara deflects this proof by claiming that according to Reish Lakish, this mishna was authored by R. Shimon, who agrees with R. Yehuda regarding shelichut. The gemara's mention of shelichut in this response is perplexing. The obvious answer should have been that R. Shimon agrees with R. Yehuda regarding kiddushin. Where did shelichut come into the picture?

 

Perhaps, according to Reish Lakish, R. Shimon agreed with the majority opinion that a na'ara can accept kiddushin, since this involves only a passive act of consent. However, appointing a shaliach requires the control and authority of ba'al davar. Only a ba'al davar can appoint a shaliach. Therefore, R. Shimon agreed with R. Yehuda that regarding shelichut, the status of ba'al davar is exclusive and limited to the father.  

 

Similarly, we may claim that a daughter can function independently as a passive yad only with respect to the reception of the get. However, the ability to appoint a shaliach requires awarding her the active status of ba'al davar and hinges on our allowing for the possibility of competing ba'alei davar – “alima ke-yad aviha.” Rav Nachman rejects the possibility of dual ba'alei davar and therefore denies the daughter the option of appointing a shaliach. According to him, since the status of ba'al davar was transferred to the father to act on behalf of his daughter within the context of his role as guardian, the daughter cannot be considered a ba'alat davar. 

 

In this week's shiur, we dealt with the dialogue between Rava and Rav Nachman, which at first glance can only be interpreted if we conclude that the father is the primary recipient of the get. By paying attention to nuances and details, we suggested an alternate explanation consistent with the opinion that views the father as secondary and awards the leading role to the na'ara.

 

 

Sources for shiur #10

 

1.         Kiddushin 44b "Itmar … nitnu."

2.         19a "amar Rava amar Rav Nachman … lo shna."

3.         Tosafot  19a s.v. omer, Rosh ch. 1 siman 25.

4.         Rashba 44b s.v. itmar

 

Questions

 

1.         How can kiddushin of a minor (who lacks the required da-at) be effective even if the father agrees ex post facto?

2.         By what halakhic rationale may a father allow his daughter to betroth herself while still a minor?

3.         The Rashba compares the ability of a minor to betroth herself contingent on her father’s consent with one, who performed a kiddushin to take effect in thirty days. What is flawed with this comparison?