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Kidushin, 45

1) WITNESSES FOR THE APPOINTMENT OF A SHALI'ACH

QUESTION: Ravina rules that when a man's father is Mekadesh a woman to his son without his son's knowledge, the Kidushin does not take effect. The father has no right to be Mekadesh a woman to his son without the son's consent, because the son is not in the domain of the father, and because a man always checks his future wife meticulously before marrying her (RASHI 45b, DH Shema Nisratzeh). We do not assume that the son appointed his father as his Shali'ach to give the Kidushin, because a son is not so brazen as to make his father his Shali'ach.

The ROSH proves from this Gemara that it is unnecessary to have witnesses present at the time of the appointment of a Shali'ach l'Holachah. Even though the rule is that "Ein Davar she'b'Ervah Pachos mi'Shenayim" (any matter related to Ervah requires the testimony of two witnesses), the appointment of a Shali'ach is not a direct act effecting Kidushin, and therefore it is not necessary to have witnesses present in order to validate the appointment.

The RAMBAM (Hilchos Ishus 3:15) explains the proof of the Rosh from the words of the Gemara that says that "perhaps" he made a Shali'ach. If there are witnesses present, then what is the question of the Gemara? In addition, if there are witnesses attesting to the fact that the son appointed his father as his Shali'ach, then how can the Gemara say that a son is not so brazen as to appoint his father as a Shali'ach for him? There are witnesses testifying that he did!

The Rishonim assume -- based on the Gemara in Gitin (63b) -- that a woman who appoints a Shali'ach l'Kabalah to receive Kidushin for her must do so in front of witnesses. The reason must be because we consider even the appointment of a Shali'ach as a "Davar she'b'Ervah." Why, then, does the appointment of the Shali'ach of the Mekadesh, the Shali'ach l'Holachah, not require witnesses? Why should it be different than the appointment of a Shali'ach l'Kabalah? This problem is especially difficult according to the Rambam, who rules in accordance with both the ruling of the Rishonim with regard to Shali'ach l'Kabalah, and also in accordance with the Halachah of the Rosh that a Shali'ach l'Holachah does not require an appointment in front of witnesses!

ANSWER: RAV MOSHE FEINSTEIN zt'l (Igros Moshe EH III:32:3) offers an explanation based on two factors. The first factor is *when* a Davar she'b'Ervah requires two witnesses. The second factor is the fundamental difference between the role of the man and that of the woman in an act of Kidushin, which in turn affects the role of their respective Shelichim.

The active role in an act of Kidushin is that of the man. The woman is completely passive. The Kinyan is executed by the man, while the woman is the passive subject of the Kinyan (see AVNEI MILU'IM, and RAN in Nedarim 30a). For a Shali'ach to do an act for the husband, it is enough for the husband to appoint the Shali'ach as his agent to perform the act. For a Shali'ach to accept Kidushin for the woman, on the other hand, since no "act" is being done (since the woman is completely passive in the act of Kidushin), we must transfer the right to receive Kidushin from the woman to the Shali'ach in order to view the Shali'ach as a filling-in for the woman and as her substitute.

The Igros Moshe goes on to explain that the only time a "Davar she'b'Ervah" requires two witnesses is when a new status or a change in status is taking effect. This is true in every act of Kidushin and Gerushin, and since the laws of all cases of "Davar she'b'Ervah" are derived from Kidushin and Gerushin, only in such cases do we require witnesses. The woman's appointment of a Shali'ach creates a new status. She transfers her power to the Shali'ach and gives the Shali'ach a newly acquired right to receive Kidushin in her place. The man's Shelichus, in contrast, does not require this transfer of power. Rather, the Shali'ach works on his own right and just performs the act on behalf of the man through the Halachah of Shelichus. Since there is no new status being created in the appointment of the Shali'ach, testimony of witnesses is not required.

45b

QUESTIONS: Ravina rules that when a man's father is Mekadesh a woman to his son without his son's knowledge, the Kidushin does not take effect (45a-45b). The father has no right to be Mekadesh a woman to his son without the son's consent, because the son is not in the domain of the father, and because a man always checks his future wife meticulously before marrying her (RASHI 45b, DH Shema Nisratzeh). We do not assume that the son appointed his father as his Shali'ach to give the Kidushin, because a son is not so brazen as to make his father his Shali'ach. The Gemara asks that perhaps the son expressed interest in marrying the girl, and thus the father may act, on his own accord, in the capacity of Shali'ach for his son to be Mekadesh the girl to him (according to the explanation of RASHI)? Rabah bar Shimi answers that Ravina explicitly stated that he does not hold of Rav and Shmuel's ruling (that in a case where a Ketanah accepted Kidushin without her father's knowledge, and then her father's consent became known, the Ketanah's Kidushin takes effect), and thus the son's show of consent cannot help the Kidushin take effect.

Based on Rabah bar Shimi's answer, most Rishonim rule that a Ketanah who accepts Kidushin without the knowledge of her father is *not* married and does not need a Get, and she does not even need Mi'un, because we do not rule like Rav and Shmuel; there is no concern that the father consented. (See RIF and ROSH.)

(a) However, the Gemara records an incident that seems to conflict with the ruling of the Rishonim. The Gemara relates that a husband and wife were arguing whether to marry off their daughter to a relative of his or to a relative of hers. The wife persuaded her husband to agree to marry off their daughter to a relative of hers. At the Se'udah they made to celebrate the choice, a relative of the girl's father was Mekadesh the girl without the knowledge of the father. The Gemara questions whether the Kidushin made by the relative of the husband is valid or not. RASHI explains that the question is whether or not we assume that the father consented to the Kidushin. The Gemara concludes that we do not assume that he consented, either because a person does not give his word and then renege on it, as the verse in Tzefanyah (3:13) teaches, or because a man does not incur the expenses of a large Se'udah for nothing.

We can infer from the Gemara that if not for the verse in Tzefanyah, or for the logic that a man does not incur expenses for nothing, we would be in doubt whether the Kidushin was valid or not. How is this to be reconciled with the ruling of the Rishonim that we are not concerned that the father consented?

(b) Another question can be asked from the following Sugya, which discusses a Ketanah who accepted Kidushin with the consent of her father, but then performed Nisu'in without his consent. The Gemara cites a Machlokes regarding whether we are concerned that perhaps the father will object to the Nisu'in when he finds out about it. We can infer from the Gemara that when the father finds out about it, if he consents to the Nisu'in then the Nisu'in will be valid. How can the Nisu'in be valid if, at the time that it occurred, the father's consent was not present (since we do not assume that he consented, according to the ruling of the Rishonim, like Ravina)?

(c) In the final case of the Gemara, that of a Ketanah who accepted Kidushin without the knowledge of her father, and then performed Nisu'in without his knowledge, Rava explains that since the daughter did an entirely rash act and acted as if she were a Yesomah without a father, her father should have protested when he finally found out about it. From the fact that he did not protest we may assume that he agrees to the marriage. How is this consistent with Rabah bar Shimi's ruling that we are not concerned that the father consented?

ANSWERS:

(a) The RIF answers that since the father stated originally that he wanted one of her relatives to marry her, the concern is not just that perhaps later the father will agree, but that the father was an active partner in the "scheme" and told his relative explicitly to be Mekadesh his daughter, and thus it is possible, even according to Ravina, that his consent can make the Kidushin take effect.

(b) The same approach answers the second question. Since, in this case, the father originally accepted the Kidushin, we can assume that he most likely he wants to go ahead with the Nisu'in as well. If the father objects, then our assumption will have been proven incorrect, but in lieu of his objection we may rely on his original consent to the Kidushin. (See RASHBA.)

(c) The RAN says that since the Rif does not quote this case of the Gemara, it must be that we do not rule l'Halachah in accordance with this Gemara. The only way that the Kidushin could be valid is through the consent of the father making it take effect retroactively, which is contrary to the ruling of Rabah bar Shimi and the Rishonim.

The SEFER HA'MIKNAH and AVNEI MILU'IM (37:10) offer a different explanation which reconciles the ruling of the Rif with the words of the Gemara. The opinion in this case of the Gemara is that of Rav Huna, who holds that Chupah alone can be Koneh a wife, even without Kidushin. Since, after the Nisu'in, we can clarify the consent of the father, his consent does not have to work retroactively from the time of Kidushin in order to make it take effect (since there was no act of Kidushin). Rather, it can be used at the time of the Chupah as consent for the act of Chupah which, according to Rav Huna, suffices. Since the Rif holds that Kidushin is also necessary (not like Rav Huna), he does not rule like the Gemara. (A. Kronengold)