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Kesuvos, 11

1) THE PRACTICAL RAMIFICATIONS OF THE CONVERSION OF A KATAN

QUESTION: The Gemara teaches that Beis Din may immerse a Katan in a Mikvah for the sake of Gerus, conversion. RASHI writes that once they are Megayer the Katan, he is considered a full-fledged Ger, and when he touches wine he does not make it Asur (like a Nochri would). The reason Rashi mentions this practical implication of the Gerus of the Katan, instead of the fact that the Ger's Kidushin will take effect like his writes later (DH Yecholin Limchos) is because Rashi here is looking for a a practical implication that applies even when the Ger is still a Katan.

Hiowever, why did Rashi not write simply that the practical implication of the Gerus taking effect is that Beis Din must see to it that the Katan observes the Mitzvos because of Chinuch? Even though Chinuch is only a Chiyuv d'Rabanan, the Isur of wine touched by a Nochri is also only d'Rabanan. Why did Rashi not give the more obvious practical implication?

ANSWER: The answer is that Rashi apparently holds like those Rishonim (see Insights to Yevamos 114:1) who say that the Chiyuv of Chinuch applies only to the child's father, and not to the mother or to Beis Din. Whether Beis Din has to stop a Katan from doing an Isur is a question discussed by the Gemara in Yevamos (114a). Therefore, there is no Chiyuv of Chinuch and Beis Din does not have to stop him if he does an Isur, and therefore the only practical implication of his Gerus taking effect is that if he touches wine, it does not become Asur.

QUESTION: The Gemara says that at the moment the Ger Katan becomes an adult, he has the option of renouncing his conversion by being Mocheh and saying that he does not accept the Gerus. If he does so, the Gerus becomes annulled retroactively. However, if he became an adult for one moment and was not Mocheh, he may no longer be Mocheh, since he accepted his Gerus for one moment as an adult.

When exactly is the Ger Katan supposed to be Mocheh? He becomes a Gadol when two hairs grow in, but that exact moment is not known! Before that moment he cannot be Mocheh because he is a Katan, and after that moment passes it is too late for him to be Mocheh! How can we know the moment at which he becomes a Gadol? (TOSFOS YESHANIM)

ANSWERS:

(a) TOSFOS (DH l'Chi) writes that until the Ger grows up *and acts like a Jew* by doing something Jewish, he may still be Mocheh.

(b) The TOSFOS YESHANIM suggests that he may be Mocheh by acting like a Nochri before he reaches adulthood, and continuing to act like that until after he reaches adulthood. That is considered one long act of Macha'ah which was in effect at the moment he became a Gadol.

Tosfos and the Tosfos Yeshanim seem to be arguing about what is necessary for the conversion to take effect when the Katan reaches adulthood. Is it necessary to have an *act of acceptance* of the Gerus to be a Ger, or is he a Ger as long as there is *act of rejection*, and the lack of rejection is considered to be an acceptance of the Gerus ("Shetikah k'Hoda'ah")? Tosfos holds that one needs an act that shows acceptance, and therefore the Ger must act like a Jew in order for the Gerus to take effect. The Tosfos Yeshanim holds that as long as the Ger does not perform an act of rejection, the Gerus is valid.

Alternatively, it could be that they argue about the mechanics of how the Macha'ah itself works. The Tosfos Yeshanim holds like the RASHBA who says (Kidushin 23a) that even though Gerus is a Zechus for the Katan, it nevertheless is not a "Zechus Gamur," a total benefit to him, since it does carry with it an element of Chov (such as the restrictions from the Hefkerus of living as a Nochri). Because it is not a total Zechus, the Ger may be Mocheh and say that he considers the Gerus to be a Chov, thereby annulling the Gerus retroactively. In order to do this, though, there must be an active Macha'ah. The Gerus will take effect unless there is something there to remove it (i.e. an announcement that it is a Chov to him).

Tosfos, on the other hand, might be learning that even though Beis Din is Megayer him when he is a Katan, and the Gerus works for a Katan without the Katan's Da'as, when he grows up and he does have Da'as, his Da'as is required to consummate and to complete the Gerus (this seems to be the view of Tosfos in Sanhedrin 68b). Accordingly, what is necessary for the Gerus to take effect is a positive act that will finalize the Gerus, and thus what is necessary for the Gerus *not* to take effect is a *lack of a positive act* to leave the Gerus unfinished and ineffective, rather than an active Macha'ah which will annul the Gerus.

(c) The TOSFOS RID proposes a novel solution. He explains that as soon as the Ger develops a mature mind, even if he is not yet thirteen years old and does not have two hairs, he is able to be Mocheh. He can be Mocheh at any time from the time that he has a mature mind until he gets two hairs.

The logic behind the Tosfos Rid's explanation can be understood with the words of the CHASAM SOFER. The Chasam Sofer writes that the age of adulthood of a Nochri may not be the same as that of a Jew. The Halachah that a Jew is considered an adult when he gets two hairs is a Halachah l'Moshe mi'Sinai; it is one of the Shi'urim that was taught through a Halachah l'Moshe mi'Sinai (Teshuvos ha'Rosh 16:1). The RADVAZ (Hilchos Melachim 9:9) writes that all of the Halachos l'Moshe mi'Sinai apply only to Jews who received the Torah at Sinai, and they do not apply to Nochrim.

Accordingly, it follows that the adulthood of a Nochri should not depend on thirteen years and two hairs. Rather, the Chasam Sofer proposes, it depends on mental maturity, even if the Nochri reaches mental maturity before the age of thirteen. According to this, the Tosfos Rid's logic is clear. If the Ger Katan wants to be Mocheh, that means he wants to remain a Nochri. If so, he is considered an adult whenever he reaches mental maturity, even before the age of thirteen. That is why he may be Mocheh from the time his mind matures. The limit of Macha'ah, when his option to be Mocheh is no longer available, is when he reaches the age of thirteen and has two hairs, because at that point he is considered a Gadol and he is able to accept the Gerus, since if the Gerus takes effect, he becomes a Gadol at that age.

11b

OPINIONS: Rav and Shmuel argue whether a Gedolah who has relations with a Katan becomes a "Mukas Etz" or not. Rav says that she is a Mukas Etz. Shmuel argues and says "Ein Mukas Etz b'Basar," that human flesh cannot make her into a Mukas Etz.

(a) RASHI says that according to Rav, she is a Mukas Etz because "[the Katan's Be'ilah] is not worse than a stick." It seems from Rashi that the Gemara is discussing a situation where the Be'ilah of the Katan removed the woman's Besulim, and that is why Rav equates it to a Mukas Etz (since the Besulim of a Mukas Etz is also removed). Moreover, that is why Rashi writes that another practical difference between Rav and Shmuel, besides the amount that she gets in her Kesuvah, is whether this woman who lived with a Katan is permitted to marry a Kohen Gadol (who may only marry a Besulah). According to Shmuel, she is permitted to marry a Kohen Gadol, even though a Mukas Etz may not marry a Kohen Gadol.

Rashi may have derived this from the wording of Shmuel who, when arguing with Rav, does not say simply the inverse of what Rav says, that the Katan does *not* make her a Mukas Etz, but he says instead that "flesh cannot make her a Mukas Etz." This implies that he is saying a general rule that applies not only with regard to her Kesuvah, but with regard to other Halachos as well.

The SHITAH MEKUBETZES adds that Rashi is disagreeing with the way that Tosfos and the other Rishonim understand the Sugya (see below).

(b) TOSFOS (DH u'Shmuel) writes that the Gemara is discussing a case where the Katan did *not* remove her Besulim. Tosfos asks that if the Katan removed the Besulim, then how could Shmuel possibly say that she is not a Mukas Etz? She would be no different than a Mukas Etz! According to Tosfos, it is clear that a Kohen Gadol would be permitted to this woman even according to Rav.

This question on Rashi is very strong, and there seems to be no way to justify allowing this woman to marry a Kohen Gadol. Similarly, she should receive only a Kesuvah of one hundred, instead of two hundred, Zuz.

TOSFOS RID explains that Rashi holds that even though the Katan removed the Besulim, it is as if the woman had removed it with her finger. In such a case, she still receives two hundred Zuz for her Kesuvah. Mukas Etz, though, is worse, and it causes her to lose a hundred Zuz (according to the Rabanan), because it is an unintended occurrence and it causes her to lose her appeal and grace ("Chen") in the eyes of her husband. The SHITAH YESHANAH cited in the Shitah Mekubetzes explains the Gemara in a similar fashion. However, this does not suffice to explain the words of Rashi, who says that she is permitted to a Kohen Gadol, for how can she be permitted to a Kohen Gadol if she no longer has her Besulim?

It is possible that Rashi also agrees to Tosfos, that the case is referring to a Katan who did not remove the woman's Besulim, and when he writes that the Be'ilah of a Katan is no different than a stick, he is just explaining why Rav compares Be'ilas Katan to a Mukas Etz. If Be'ilas Katan does not remove Besulim, then in what way is it similar to Mukas Etz? Rashi is answering that the reason a Mukas Etz does not have a Kesuvah of two hundred is because she has less "Chen" in the eyes of her husband, because he was not privileged to remove her Besulim (see TOSFOS 4a, DH Be'ilas), for the husband prefers to be the one to remove her Besulim since it causes a stronger bond between them. Similarly, after a Be'ilas Katan, even though it did not remove the Besulim, the bond between the woman and her husband whom she marries will not be as strong, and thus she has a Kesuvah of only one hundred Zuz.

Regarding why she is Pesulah to a Kohen Gadol, perhaps the Be'ilas Katan leaves a Pesach Pasu'ach, an opening, even though it does not remove any blood. Because she has a Pesach Pasu'ach, she is Pesulah to a Kohen Gadol. (See also He'oros b'Maseches Kesuvos of Rav Elyashev.)

QUESTION: The Gemara cites a Mishnah (12b) that says that if a husband finds his wife to be a Be'ulah, he may claim that the marriage was a "Mekach Ta'us," an error, and he may refuse to give her the entire Kesuvah, according to Rebbi Yehoshua. One of the opinions in the Gemara explains that "Mekach Ta'us" does not mean that the entire marriage is annulled, but that she loses 100 of the 200 Zuz of the Kesuvah, but she receives the remaining 100. Even though she was not a Besulah, she does not lose the entire Kesuvah, but only 100 Zuz.

The Gemara earlier (10a) says that a man is believed to say that he found his wife to be a Be'ulah ("Pesach Pasu'ach Matzasi"), because of the Chazakah that he would not put forth so much effort for the wedding Se'udah and then get rid of his wife so quickly, unless he is telling the truth. However, if, by claiming "Pesach Pasu'ach," he is only going to cause her to lose 100 Zuz from the Kesuvah and he will remain married to her, then he will not be losing anything! Why, then, should we believe him? (TOSFOS 10a, DH Chazakah)

ANSWERS:

(a) TOSFOS answers that indeed, if he does not divorce her, he will not be believed. The Gemara is referring only to a case where he wants to divorce her right away and give her only a Kesuvah of 100; in such a situation, he is believed because of the Chazakah that "Ein Adam Torei'ach...."

(b) The RAMBAN and RE'AH explain that we assume that he is going to divorce her, because once he has created an unpleasant atmosphere in the marriage by claiming she was not a Besulah and making her lose part of her Kesuvah, they are not going to remain married to each other. ("A person does not spit into a cup and then drink it.")

(c) The RAMBAN cites a TOSFOS who answers that the whole benefit in toiling for the Se'udah is that the man feels good that people see and know that he married a Besulah. If, afterwards, he claims that she was a Be'ulah, then he will lose the pleasure of people knowing that he married a Besulah.

(d) The RAMBAM (Hilchos Ishus 11:14) explains that the Chazakah is that a man would not want to change "his day of joy to a day of mourning," meaning that he does not want to ruin the joy of the moment by commencing legal action against his wife at this moment, even if he does not end up divorcing her. He still does not want to lose the joy of the moment. (See SHAV SHMAISA 2:10.)