Shiur #5: Kiddushei Ketana
Shiur #05: Kiddushei Ketana
based on shiurim by Rav Binyamin Tabory
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, cannot 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, since she has a specific technical disability, i.e. she does not have the power to give legal consent to marriage.
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 right enables him to keep the money or shtar. In the case of bi'ah, the father may choose who the groom will be, but no money is involved in this process. However, 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.
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 accepting 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, which implies that she could accept kiddushin as well (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. Additionally, 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 29 in Mossad HaRav Kook edition.) Clearly, Reish Lakish treats the father only as the daughter's agent to deal with monetary considerations.
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), he must pay the greater amount. The Rambam says that this is a case of "modeh be-miktzat, partial admission to the claim, where the law requires the defendant to pay the full amount. The Ra'avad, however, disagrees, and maintains that since the daughter will not receive the money, she is not the litigant, and cannot cause the rapist to incur 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, 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 Yitzhak 25, p. 161. I have chosen to interpret this as did Rav Chaim Soloveitchik, Hilkhot Na'ara Betula 2:13 ).
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 cannot 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 cannot accept kiddushin independently because she cannot receive direct benefit, from the money she receives.
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.
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 accordibg to Rav?
3. Why is the Rambam so repetitious in the above halakhot?