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Kidushin, 46

1) A KETANAH WHO ACTS LIKE AN ORPHAN IN THE LIFETIME OF HER FATHER

QUESTION: The final case of the Gemara (45b) is that of a Ketanah who accepted Kidushin on her own without the consent of her father, and then performed Nisu'in without his consent. Rav Huna rules that she is married, and Rav Yirmeyah bar Aba holds that she is not married. Ula rules like Rav Yirmeyah bar Aba based on logical reasoning.

Rava explains that Rav Huna's reason for ruling that the daughter *is* married is because "she acted like a Yesomah (orphan) in the lifetime of her father." RASHI explains that since her father saw her accept Kidushin and Nisu'in and he was silent, we assume that he relinquished ("Hifkir") the right to marry her off. Alternatively, says Rashi, the father's silence was a sign that he consented to the marriage ("Shetikah k'Hoda'ah").

Rashi's second explanation, that the daughter is married because the father showed his consent by being silent, is understandable. Since we see that the father remained silent, we can assume that he consented, and, consequently, the Kidushin takes effect retroactively through Zechiyah, as the daughter acts as the Shali'ach of the father.

Rashi's first explanation, though, is difficult to understand. Rashi says that the reason she is married is because the father completely relinquished his right to marry her off. According to this, though, it seems that the father had no role in the Kidushin whatsoever. Rather, on the contrary, he forfeited his rights altogether. This means that the Ketanah is acting entirely on her own volition. How, then, can she be married? A Ketanah cannot perform an act of Kidushin on her own, since a Katan or Ketanah cannot make a Kinyan!

ANSWER: The SEFER HA'MIKNAH and the PNEI YEHOSHUA rule that according to this explanation of Rashi, the Kidushin will be valid only *mid'Rabanan*, while with regard to all d'Oraisa laws, such as the husband's right to become Tamei for her if he is a Kohen, she is *not* considered married to him. They refer to TOSFOS earlier (45b, DH b'Feirush) who cites the view of Rabeinu Tam who says that a Ketanah whose father has traveled abroad has the same status as a Yesomah who, mid'Rabanan, is able to perform Kidushin even when she is a Ketanah. The same principle applies to the words of Rashi here. If the father has forfeited his rights, we view the daughter as being "orphaned" and she can therefore perform Kidushin on her own.

QUESTION: Rav teaches that a Ketanah who accepted Kidushin without the knowledge of her father may change her mind and terminate the relationship (without a Get).

Earlier (44b), Rav is of the opinion that when a Ketanah accepts her own Kidushin, we must take into account the possibility that the father has consented to the marriage. How, then, can Rav state here that the daughter c an change her mind? If the father wants the Kidushin to take effect, the daughter should have no say in the matter, as is the case in every situation of a Ketanah whose father has the right to marry her off without her consent!

ANSWERS:

(a) TOSFOS explains that since the Ketanah's acceptance of Kidushin on her own works through the concept of Zechiyah, we say that if the father sees his daughter's protest to the Kidushin, he probably is no longer interested in the marriage and there is no concern that he will consent. Her act, therefore, is not considered an act of Zechiyah for her father.

(b) RASHI seems to address this question. Rashi writes that the Ketanah may change her mind only before the father finds out about and consents to the Kidushin. Once her father consents to the Kidushin, the Kidushin takes effect completely and she cannot change her mind. She may change her mind only when we know for certain that her father did not consent.

Even if that is the case, though, we still need to understand why her will should affect the validity of the Kidushin, since, after all, it is her father who is in charge of accepting Kidushin for her.

The MAHARAM explains that since the act was done by her, she has the right to retract her act. Even though she was only acting as a Shali'ach for her father, she can still nullify the act through her retraction, since her retraction is done prior to the Kidushin taking effect. According to the Maharam, it seems that this is a rule in every case of a Shali'ach -- as long as the act did not yet take effect, a Shali'ach may retract it.

QUESTION: Rav and Rav Asi argue whether a Ketanah who accepts Kidushin without her father's consent may change her mind. The Gemara challenges the opinion of Rav Asi who says that only the father may retract the Kidushin but the daughter may not. The verse teaches that if a man persuades a girl to live with him, he must take her as his wife, but "if her father refuses (Im Ma'en Yima'en Avihah) to give her to him" (Shemos 22:16), then he must pay a penalty instead. The extra wording of "Ma'en Yima'en" teaches that the daughter may also refuse to marry the man. If the verse is referring to a man who seduces a girl and persuades her to accept Kidushin from him ("Pituy l'Shem Kidushin"), then it contradicts the opinion of Rav Asi who says that the girl may *not* refuse once she has accepted Kidushin on her own.

The Gemara answers that the verse is referring to a man who seduces a girl without persuading her to accept Kidushin from him ("Pituy she'Lo l'Shem Kidushin"). Rav Yosef supports this assertion from the fact that the verse (Shemos 22:15) requires that the man be Mekadesh the girl after the seduction, when he takes her as his wife. If his act of seduction included persuading her to accept Kidushin, then he should not have to do Kidushin with her again! Abaye refutes this proof by saying that the purpose of this second Kidushin is to have a Kidushin with the father's consent (since the first one was done without his consent).

According to the opinion that the seduction of the girl included persuading her to accept Kidushin, whose Da'as is it that validates the Kidushin? Since the girl is a Ketanah, it cannot be her Da'as, since she does not have Da'as to make a Kinyan. Rather, it is the Da'as of the father that validates the Kidushin. How, then, can Abaye say that another act of Kidushin is necessary in order to have Kidushin with the father's consent? If there was no consent in the first place, then certainly the Pituy was an ineffective Kidushin! On the other hand, if the father did consent to the Kidushin at the time of Pituy, then why does the Torah require a second act of Kidushin?

ANSWER: The RITVA explains that even though we are concerned that there might not have been consent from the father at the time of the Pituy (and thus Rav is following his own view in this regard as expressed earlier), we are still not *certain* that there was no consent. We require a Get out of doubt, but we cannot give her a definite status of Mekudeshes unless the father gives his explicit consent to the Kidushin. The Gemara, then, is not saying that the Torah actually requires a new act of Kidushin, but rather it is saying that when the father shows his consent, it is now as if a proper Kidushin has been performed.

The RASHBA suggests that further proof can be brought from here for the view of the RIF (see Insights to Kidushin 43:3 and 44:1), who holds that the consent of the father does not work retroactively to make the Kidushin which the Ketanah accepted take effect. He explains that this is what Abaye means to say -- since the consent of the father does not work to make the Ketanah's Kidushin valid, no proof can be brought from the verse that it is referring to "Pituy she'Lo l'Shem Kidushin."

46b

QUESTION: The Gemara cites a Machlokes between Rav and Shmuel regarding how to view the money that is given for Kidushin in a situation where the Kidushin cannot take effect (such as when one gives money to his sister in order to be Mekadesh her). Rav holds that the money is given as a Pikadon, a security, and if it is lost or consumed it becomes a Halva'ah, a loan, which the woman must pay back. Shmuel holds that the money remains a gift from the Mekadesh.

The Gemara applies this Machlokes to the case of our Mishnah (46a), in which a man is Mekadesh a woman by giving her three dates and saying, "Be Mekudeshes unto me with this, and with this, and with this (b'Zu uv'Zu uv'Zu)." The Mishnah says that the Kidushin does not take effect immediately, but only after all of the dates have been given. The interim period, before all of the dates have been given, is like a Kidushin that has not taken effect, and the status of each date is dependent on the Machlokes how to view the Kesef given for a Kidushin that does not take effect.

The Gemara (at the beginning of this Amud), before introducing the Machlokes between Rav and Shmuel, proves that Rebbi Ami holds that money given for Kidushin which cannot take effect is not considered a gift but rather a Pikadon which becomes a loan after being consumed (like Rav holds). That is why Rebbi Ami rules that the Kidushin does not take effect unless the last date has the value of a Shavah Perutah.

The Gemara implies that if the Kesef Kidushin would be considered a gift, then the Kidushin would take effect after the entire act of Kidushin is completed (i.e. after all of the dates are given). Why should this be so? If the dates, in the interim period, are all considered to have been gifts, that means that they were not given for the purpose of Kidushin and have already become the property of the woman, like a normal gift. How can they then be used to create a Kidushin?

ANSWER: The RASHASH explains that the comparison between marrying a sister, where the Kidushin will never take effect, and the case of our Mishnah in which the Kidushin will take effect later but in the meantime it has not taken effect, is a limited comparison. In our Mishnah, the intent of the Mekadesh is to make a valid Kidushin and not to give a Pikadon or a gift. Even though the Kidushin does not take effect right away, the Mekadesh will not do anything which will impede the Kidushin from eventually taking effect. What he will do depends on the Machlokes between Rav and Shmuel: if the Kesef (or dates) of Kidushin becomes a Pikadon, then it does not hinder the Kidushin from taking effect later. Since the Kesef still belongs to the Mekadesh it can be turned into Kesef Kidushin at his will. The reason why, in our Mishnah, the dates could not be used for Kidushin is not because of the intent of the Mekadesh, but rather it is because of the woman. Since she consumed the dates, she turned the Pikadon into a *loan* which can no longer be used for Kidushin. As far as the Mekadesh is concerned, though, giving a Pikadon should not interfere with the Kidushin.

If, however, the Kesef given for a Kidushin which does not take effect is considered a *gift*, as Shmuel rules, then the case of our Mishnah is not comparable to a normal case of Kidushin which does not take effect, because in our case the man has absolutely no intention to give the woman a gift. Since his intention clearly is to give the dates for the sake of the Kidushin which will take effect at the end, he will not act in this case as a man acts in a normal case of Kidushin which does not take effect, but rather he gives the dates with full intention that they be used for the sake of making Kidushin. (See also RITVA.)