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Kidushin, 44

1) A NA'ARAH'S ABILITY TO RECEIVE HER GET AND KIDUSHIN

QUESTION: The Gemara (43b) quotes the Mishnah in Gitin (64b) in which the Rabanan state that both a Na'arah Me'urasah and her father may accept her Get. Rebbi Yehudah there argues and says that only her father may accept her Get. Rebbi Yochanan and Reish Lakish argue whether the Machlokes between Rebbi Yehudah and the Rabanan applies also to Kidushin. May a Na'arah accept her own Kidushin, or may only her father accept it? Reish Lakish says that the same Machlokes applies to Kidushin, and, therefore, according to the Rabanan a Na'arah may accept her Kidushin on her own. Rebbi Yochanan argues and says that with regard to Kidushin, the Rabanan agree with Rebbi Yehudah that a Na'arah cannot accept Kidushin on her own, but that her father must accept it for her.

The Gemara here cites our Mishnah (41a) as a challenge to the opinion of Reish Lakish. The Mishnah says that a father may marry off his daughter when she is a Na'arah, "either he or his Shali'ach." The Mishnah does not say that "either *she* or *her* Shali'ach" can accept her own Kidushin. From this the Gemara infers that a Na'arah *cannot* accept her own Kidushin, in contrast to the opinion of Reish Lakish. In the conclusion of the Gemara, Reish Lakish answers that the Mishnah is the view of Rebbi Shimon who holds like Rebbi Yehudah with regard to Shelichus, and thus the Mishnah could not say "she or her Shali'ach" can accept Kidushin.

What is the Gemara's question on Reish Lakish from the Mishnah? Perhaps when the Mishnah says that "he or his Shali'ach" may accept Kidushin for his daughter, it is not excluding the Na'arah herself from accepting Kidushin, but rather it is excluding the Na'arah's *Shali'ach* from accepting Kidushin (as the Gemara concludes with regard to Gitin, that the Rabanan (in the Mishnah in Gitin) agree that only the Na'arah herself can receive her Get, but she cannot appoint a Shali'ach to receive it for her). Perhaps the Na'arah is excluded only from the right to appoint a Shali'ach but not from the ability to receive the Kidushin herself! Since she may accept Kidushin for herself, the Mishnah is not a question on the view of Reish Lakish!

ANSWER: The RITVA and RASHBA answer that if that were the case, then the Mishnah should not have referred to the father's own ability to receive the Kidushin ("either *he* or his Shali'ach"), but rather it should have mentioned only that his Shali'ach may accept Kidushin for his daughter. Since the Mishnah mentions both him and his Shali'ach, we can assume that the Tana's intention is to exclude a Na'arah from both of these powers -- she cannot make a Shali'ach to receive her Kidushin, and nor may she receive it herself. (See alternative answer of SHITAH LO NODA L'MI.)

However, according to the Ritva and Rashba who explain the Gemara's proof from our Mishnah, the inference from the Mishnah is not from the inability of the Na'arah to appoint a Shali'ach (as on 44b), but rather from the Na'arah's own inability to receive the Get by herself. According to this explanation, why does the Gemara refer to our Mishnah as "Shelichus" and say that with regard to Shelichus our Tana holds like Rebbi Yehudah? According to these Rishonim, our Sugya is not discussing Shelichus at all, but rather it is discussing the difference between the father and the Na'arah themselves!

The MAHARSHA answers that even according to the Rabanan who hold that a Na'arah may receive a Get or Kidushin herself, when she receives the Get or Kidushin she is not operating with her own power but rather as an outgrowth of her father's rights. The Maharsha proves this by pointing out the two sides of the Gemara's question later (44b): is a Ketanah like the Yad (hand) of the father (and therefore she may appoint a Shali'ach) or is a Ketanah like the Chatzer of the father (and therefore she may not appoint a Shali'ach)? Both sides view the Ketanah as working for her father -- either as his Yad or as his Chatzer. Neither side views her as having her own independent power. Therefore, explains the Maharsha, even when discussing the Na'arah's own ability to receive a Get or Kidushin, we refer to it as Shelichus, since she is, in effect, the Shali'ach of her father, since her power to do so is received from him.

The RASHBA in Gitin (64b) cites this Gemara as another proof to the view of the RIF mentioned earlier (Insights to Kidushin 43b) who holds that according to the Rabanan, only a Na'arah can receive her Get and not a Ketanah. Since we see that the Gemara refers to the ability of a Na'arah to receive her Get or Kidushin as Shelichus, we see that she really has no power of her own, but she receives her ability from her father. A Ketanah, therefore, is the same, and she may receive a Get by herself only after her father dies, because of "Nisroknah." (A. Kronengold)

44b

QUESTION: Shmuel states that a Ketanah who accepted Kidushin from a man without the knowledge of her father needs a Get and must do Mi'un. The Gemara explains that both a Get and Mi'un are necessary, because perhaps the father later consented to the Kidushin, in which case the Kidushin is valid mid'Oraisa and requires a Get to absolve it. Mi'un is necessary because perhaps the father did not consent, and the Kidushin is not valid mid'Oraisa. However, since she receives a Get, people might think that the Kidushin *was* valid, and when her former "husband" marries her sister, they will assume that the Kidushin with her sister is not binding (when it really is binding). Therefore, both a Get and Mi'un are necessary.

Rav Nachman adds that the necessity for a Get is only when the husband of the Ketanah discussed the marriage with her father before the Kidushin, and thus when her father's consent becomes known, the Kidushin turns out to be effective retroactively (l'Mafrei'a), from its start (as Rashi explains in DH v'Hu sh'Shidchu).

The Gemara assumes that if we can verify the consent of the father, then the Kidushin that was accepted by the Ketanah will be valid.

There seem to be a number of problems with a Kidushin done in this manner.

First, a Katan or Ketanah does not have Da'as to perform a Kinyan (see 44a), so how can the Ketanah acquire the Kesef of Kidushin for herself?

Second, from the fact that the Gemara says that the consent of the father is necessary in order for her act of Kidushin to be effective, it must be that she is carrying out the father's will and is acting as his Shali'ach. How can this be reconciled with the previous Sugya that teaches that Shelichus does not apply to a Katan or Ketanah? (Even though the Gemara says specifically that a Katan cannot *appoint* a Shali'ach and it does not say that a Katan cannot *be appointed* as a Shali'ach, nevertheless, since it learns this from a verse, it should work both ways, and a Katan should not be able to become a Shali'ach just like he cannot appoint a Shali'ach, as the Rishonim point out.)

Third, why is clarifying the consent of the father at a later time sufficient for the Kidushin to take effect? It should be necessary to know the will of the father at the moment that the daughter accepts the Kidushin in order for her act to be considered an act of Shelichus on behalf of her father! How does her father's consent work retroactively to make her a Shali'ach, when -- at the moment she performed the act -- she was not his Shali'ach?

ANSWER:

The ROSH (1:25) on the Gemara earlier (19a) makes two amendments to the limitations of the act of a Katan. First, even though a Katan cannot perform an act of Kinyan, nevertheless, when someone else is Makneh something to him, he has the power to be Koneh the item. The Da'as of the Makneh who is putting the object into the possession of the Katan assists the Katan in his act of making a Kinyan for himself. Since every Kidushin has a Makneh (the man who is being Mekadesh the woman), a Ketanah therefore is eligible to participate in the act of the Kinyan of Kidushin.

Second, when discussing Shelichus, we normally mean that Reuven, the Shali'ach, does something on behalf of Shimon, the Meshale'ach, for the benefit and interest of Shimon, the Meshale'ach. A Katan is certainly not qualified to participate in this type of Shelichus. However, when a Ketanah acts in the capacity of a Shali'ach for her father to be Mekabel her Kidushin, the situation is different than the normal case of Shelichus. In this case of Shelichus, the Shali'ach (the daughter) is the beneficiary of the act, and not the Meshale'ach (the father). Instead of the Shali'ach doing the act for the benefit of the Meshale'ach, in this case the Shali'ach is doing the act for her own benefit. A Katan or Ketanah has the power to do something which results in an outcome for himself.

(b) The RAN says that the Ketanah's ability to accept Kidushin works through *Zechiyah* and not through regular Shelichus. The will of the father at the later time is just a sign that this was the father's will all along, and therefore the Ketanah had the power to act as a Shali'ach even without any specific appointment, through the law of Zechiyah.

(c) The RITVA explains the Gemara in a different way altogether because of the above questions. The Ritva maintains that the Kidushin is valid only "mi'Kan ul'ha'Ba," from the time that the father's consent is clarified, and onward. (See the Ritva, who explains that this is similar to the Halachah of Arev, and therefore it is necessary that the money of Kidushin still be extant in the hands of the girl. Once the will of the father is clarified, the fact that the Mekadesh does not take back the money shows that he *now* wants to be Mekadesh the girl, with the consent of her father, and is like an Arev.)