Shiur #26: The Independent Betrothal of a Minor
The gemara (44b) records a debate concerning the possible efficacy of kiddushin accepted by a minor without the knowledge of her father. Rav and Shemuel maintain that the girl requires a get, due to the possibility that the father may acquiesce to the union. Ula, on the other hand, does not entertain this possibility, and subsequently does not demand a get to allow the girl to marry someone else. Apparently, this should lead us to conclude that, were we to verify that the father did consent, everyone would agree that kiddushin performed with a minor is effective.
This conclusion is surprising. So long as she is a minor, a girl remains under the legal jurisdiction of her father. In theory, therefore, although our Sages limited this option (see 41a), the father may betroth his daughter even without her consent. However, kiddushin performed by the daughter appears, at first glance, meaningless, since as a minor, she lacks both the authority and the required level of da'at (intellectual capacity) necessary for kiddushin.
Several Rishonim understood that the betrothal is effective only if we can view the father, not the daughter, as actually participating in the kiddushin. In order to justify this position, some Rishonim enlisted the sugya in the first perek (19a) of "tze'i ve-kabli kidushayikh," which posits, "A person can say to his daughter: Go and accept your betrothal." Accordingly, we may explain that Rav and Shemuel's safek is that the father may have agreed to the match prior to the kiddushin and explicitly instructed the daughter to receive the kiddushin on his behalf. Similarly, the Ra'avad explained our gemara as referring to a case where the minor accepted the marriage proposal in the presence of her father. Therefore, the silence of the father can be interpreted as an implicit instruction of "go and accept your betrothal." However, the Rashba rejects both of these possibilities as incommensurate with our sugya.
The Ramban, as well, maintained that the kiddushin must be attributed to the father, not the daughter. In his opinion, this can be accomplished even if the father became aware of the kiddushin ex post facto and never instructed the daughter with regard to the kiddushin:
"Though the betrothal and marriage of one's daughter is detrimental to the father with respect to nedarim and the profits of her labor [over which the father loses rights with his daughter's marriage], it is ultimately to his benefit to marry her off and it is a mitzva charged upon him. In such a situation, when we see that he consents, something beneficial to the individual may be performed on his behalf even without his knowledge."
(This approach was discussed in last week's shiur.)
Similarly, the Rid explained that the father became aware of his daughter's betrothal after the fact and only then did he explicitly offer his consent. Nevertheless, the Rid suggested that according to Rav and Shemuel, we may view this eventual consent as reflecting the mindset of the father, thus revealing to us that this agreement existed in potential even at the time of the kiddushin. The father merely lacked the information of his daughter's betrothal. Once the father agrees when supplied with this information, we can consider his consent retroactive, thus legitimizing the kiddushin.
At first glance, this explanation of Rav and Shemuel poses considerable difficulty. After all, since the daughter is under the jurisdiction of her father, the party with whom the kiddushin can be enacted is the father. Therefore, the consent of the father is critical and constitutes “da'at makneh,” without which there is no kiddushin. Hence, the da'at of the father effects the kiddushin and is required in an active sense; it cannot be substituted by presumed acknowledgment. (See Tosafot Ri Hazaken 45b.) It therefore seems unreasonable to apply the consent of the father retroactively.
In fact, the Rid argued with our initial assumption and claimed that Ula, who disputes Rav and Shemuel, and does not require a get in this case, totally rejected their position. Accordingly, even were we to ascertain that the father, upon hearing of his daughter's kiddushin, gave his full consent, the kiddushin would still be invalid. Furthermore, according to the Rid, this position of Ula is accepted as halakha. Nevertheless, this is of little comfort to us, as we are still in the dark regarding the opinion of both Rav and Shemuel, two of the greatest Amoraim, the pillars upon which the Talmud was founded.
Aside from the logical difficulty in applying the da'at of the father retroactively, a closer inspection of the gemara reveals an additional problem. The gemara seeks to support the position of Rav and Shemuel from a beraita that permits a father to sell his widowed daughter as a maidservant to a kohen gadol (despite the fact that the kohen gadol cannot marry her, as she is a widow; generally, a father sells his daughter as a maidservant with the intent that the owner may marry her when she reaches adulthood). How, the gemara asks, can a situation arise whereby a father can sell his widowed daughter as a maidservant? As only a minor can be sold, she must have been married and widowed as a minor. Presumably, the gemara reasons, her father had married her off. However, the gemara continues, halakha forbids a father from selling his daughter as a maidservant after having previously married her off. The only possible scenario, then, to which the beraita could have referred, is a case where the girl married herself, rather than by her father. The fact that the beraita speaks of her as a "widow" implies that this marriage was valid, despite the fact that she married independently, thus supporting the position of Rav and Shemuel.
This discussion in the gemara appears to call into question the approach taken by the aforementioned Rishonim. According to the gemara, although a father cannot sell his daughter after having previously married her off, he can sell her after she had been married independently. Why can the father sell his daughter after he consents to her marriage? After all, according to these Rishonim, through the father's consent he, not the daughter, actually participates in the marriage, and we already established that a father may not sell his daughter after having betrothed her!
This gemara seems to suggest an alternate interpretation of our sugya, by which the daughter, not the father, is the active participant in the kiddushin. The father merely has to grant permission in order to allow for the kiddushin of the daughter. Therefore, the father may sell the daughter even after agreeing to her kiddushin, since this consent is not considered kiddushin itself and hence the father himself never betrothed his daughter, and never forfeited his right to sell her.
This understanding, though novel, finds additional support in the position adopted by the Rashba, who argues as follows:
"We may explain that perhaps the father consents when he hears [of the betrothal], such as if he kept silent when he heard [rather than objecting]… This becomes similar to a case of [a groom who tells the bride,] 'You are betrothed to me on condition that your father consents,' where she is betrothed once he [the father] hears and does not object, even though it did not take effect at the time of the giving [of the kiddushin money]… Here, even though the money is gone before the father hears [of the betrothal], we nevertheless must concern ourselves [for the possible consent of the father, and hence the validity of the kiddushin], as it resembles a situation [where the groom says,] 'You are betrothed to me after thirty days,' in which case even though the money is gone [before thirty days have passed], she is betrothed."
By comparing our sugya to a case of kiddushin that is to take effect in thirty days, the Rashba indicates that the act of kiddushin had been completed with the daughter, before the father enters onto the stage. True, the kiddushin cannot take effect until the father agrees, but this agreement is not a requirement of the ma'aseh kiddushin, which has already been completed with the daughter. Hence, it is the daughter, not the father, who is party to the kiddushin. The consent of the father is a requirement that is external to the ma'aseh kiddushin, necessary merely to lend legitimacy and validity to his daughter's act.
At first glance, this approach seems absurd. How can we separate the act of kiddushin performed by the daughter from the intent supplied by the father? Can we consider a mindless act complete, merely awaiting da'at in order to take effect? Does the ma'aseh kiddushin exhaust itself in the physical performance of placing a ring on the hand of a woman in the presence of witnesses? Would anyone entertain the possibility of a valid performance of kiddushin by placing a ring on the finger of a sleeping woman, pending her consent? Anyone versed in the logic of the halakhic system would immediately detect the absurdity of this suggestion.
In order to present our suggestion as a viable option, we cannot view the ma'aseh kiddushin performed by the daughter as a mindless act. Hence, we must award halakhic significance to the daughter's intent. Though still a minor, whose intentions do not meet the halakhic criteria of da'at, she is nonetheless capable of making decisions which reflect her will. Apparently, this will is sufficient to infuse meaning into the ma'aseh kiddushin. In fact, the Rambam (Hilkhot Ishut 4:1) uses the telling term, “ratzon” – will, when describing the intention required of the woman participating in kiddushin. "Ratzon" denotes the personal, intimate, inner stirrings of a soul, which applies to both child and adult.
However, though capable of "ratzon," a minor is unable to effect kiddushin without the father's approval. The Torah placed the daughter in the trust of her father, and thus the consent of the guardian - father - is a necessary requirement. Nevertheless, this approval is external to the act of kiddushin that is concluded between the chatan and the daughter.
According to this approach, we can also appreciate the proposal of the Rid, that the eventual consent of the father can be applied retroactively. We rejected this possibility, assuming that the explicit da'at of the father was necessary to give meaning to the basic ma'aseh kiddushin. However, upon suggesting that the ma'aseh kiddushin is consumated with the daughter, pending the father's approval, we are open to the possibility that this approval, which is not part of the basic ma'aseh kiddushin can be presumed. Since the father readily granted his permission upon learning of his daughter's betrothal, we can assume this approval retroactively, as well.
Furthermore, we can employ this approach to explain the sugya of "tze'i ve-kabli kidushayikh." At the beginning of this shiur, we assumed that this halakha is based on some form of shelichut, by which the daughter acts on behalf of the father. Indeed, this interpretation was adopted by a number of Rishonim (see, for example, the Rosh ch. 1 siman 25). However, in light of our analysis, we can explain that the father is merely voicing his approval, which in turn allows the daughter to marry herself. Sure enough, this seems to be the interpretation suggested by Tosafot (19a s.v. omer).
Over the past few weeks we have focused on the relationship between the father and the daughter regarding gittin and kiddushin. Until this shiur, we dealt with areas where a daughter would have the ability to act independently were she not in the jurisdiction of her father. Thus we were able to discuss which action was playing the lead role, the father or the daughter.
In today's shiur we discussed the betrothal of a minor, who without her father lacks the independence to marry herself. This led to our initial assumption that the father is the primary party. However, closer inspection of the sugya and various commentaries, led us to suggest that even in this case the act of kiddushin can be performed by the daughter, although a minor, pending the consent of her father.