THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KIDUSHIN 46-47 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
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.
2) A KETANAH WHO ACCEPTS KIDUSHIN ON HER OWN AND THEN CHANGES HER MIND
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).
3) A KETANAH WHO IS ACCEPTS KIDUSHIN WHEN SEDUCED
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
(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."
4) MONEY GIVEN FOR KIDUSHIN WHICH CANNOT TAKE EFFECT
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
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.)