Volume 20 Number 29
Produced: Sun Jul 2 23:06:25 1995
Subjects Discussed In This Issue:
Betrothal of Minors
[Chana Luntz]
Kiddushei Ketana
[Yosef Bechhofer]
Marrying off Daughters
[Jeremy Nussbaum]
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From: Chana Luntz <luntz@...>
Date: Mon, 19 Jun 1995 15:29:34 +1000 (EST)
Subject: Betrothal of Minors
I have been asked what I meant by suggesting that maybe the ne'emanus of
the father does not extend to a situation in which the daughter is not
in his physical control.
Obviously for this kind of question you need somebody far more
knowledgeable than I am. But the lines i was thinking along went like
this:
The gemorra in Kiddushin (64a) states that the reason we believe the
father is because of the pasuk in Devarim 22:16 "I gave my daughter to
this man" therefore, the Torah believes the father to forbid her to a
man. This discussion comes after an attempt by the gemorra to understand
the believability of the father in terms similar to that of other edei
echad, ie in general we have a principle that eid echad ne'eman
b'issurin [one witness is believed with regard to forbidden things] on
the basis that d'byado l'takno [it is in his hands to fix the matter]
(see Yevamos 88a - eg since a person can take ma'aser if necessary he is
believed to say that produce is tevel or not). The gemorra here in
Kiddushin attempts to understand the reason for the father's
believability on the basis that he *could* marry her, and therefore he
is believed to say he did. It however rejects this argument on the basis
that a) the husband may not want to get married, so it is not totally in
the father's control and b) he is also believed to say that she was
divorced, and that is certainly not in his control. So therefore it
resorts to the pasuk, ie a chiddush based on a gezeras hakasuv [what is
decreed in the Torah].
Now we have a general principle that we don't extend a gezeras hakasuv
beyond what was actually specified in the Torah - ain lecha bo ele
chidusho for the obvious reason that it is hard to know exactly how far
to extend it, since the whole point of it being a chiddush is that it is
not something that we necessarily understand or could derive (this
principle is found in many places, can't think of the definitive one at
the moment, but see Tosphos Baba Metzia 96a d'h v'nishal).
Now the pasuk in question arises in the context of motzei shem ra, ie
where the husband comes to beis din and claims the girl was not a betula
[virgin], hence it involves a situation where the father betrothed the
girl, then handed her over to the husband or his shlichim, and then
after the marriage the husband alleges lack of virginity. And the part
of the pasuk quoted in Kiddushin emphasises the control aspect, the key
word being "natati" I gave. Clearly in this case the father was in a
position to give the girl over. So applying the principle relating to
chiddushim, we might learn that the father is believed where he has the
ability to give the daughter over to the husband - but may not be where
he has no such ability.
This reading would seem to be supported by the hava amina of the gemorra
in Kiddushin, in that the original assumption of the gemorra is that the
reason the father is believed is because he has total control of the
process. It is then pointed out that in two respects he does not have
total control of the process - but the underlying assumption appears to
be one of control, and the possible lack of an ability to give is not
brought as a reason to reject the original assumption.
[Perhaps this rading may also be supported by something else we learn
from the parsha of motzei shem ra. In Sanhedrin 66b we learn that a
narah hamurasah [betrothed maiden] who committed adultery is stoned
(rather than being strangled which is the standard punishment for
adultery), but only if she was still b'beis aviha [in her father's
house] and not if she does the act after the father has handed her over
to the shlichim [agents] of the baal [husband]. And Rashi comments there
that we learn this from the parsha of motzei shem ra, where if the
allegation is found true, she is stoned at the door of her father's
house for being immoral in her father's house. So here we see taht this
parsha is very much concerned with what went on in her father's house,
and differentiates the situation the minute she leaves that control.]
Now it has been suggested to me that the discussion regarding the father
going off to midinat hayam [overseas] in Even HaEzer siman 37 s'if 14
would seem to go against this reading. But I think to the contrary. It
seems [and i say seems because i have only limited access to s'farim, so
I am dependant on what is brought by the meforshim on the Shulchan Aruch
and have been unable to read these inside] that the view of the Ran and
Tosephos is contrary to this, but it seems to me that the Shulchan Aruch
clearly rejects the view of the Ran and Tosphos (as the commentors
remark). Briefly, from what I can gather, the Ran is concerned in the
case in which the father goes off to midinat hayam that at any point the
father might marry his daughter off, and therefore we ought to be
choshesh [concerned] that maybe she is a married woman. I found this Ran
very difficult to comprehend, so I was relieved to see that the Turi
Zahav also rejects this on the basis that if this were the case, every
time a father dies in midinas hayam leaving minor daughters they would
be forbidden to marry, just in case he married them off [Of course, on
could argue that unlike the case of shlichus, where a shliach is
presumed to have done his job, there presumably would be no such
assumption here - on the other hand, give than we hold that if a father
does not remember which daughter he married, a minor daughter or a grown
daughter who appointed him her shaliach, it is presumed that the minor
daughter was meant (see si'if 15). It would therefore appear that a
father is considered *more* likely to have married off his minor
daughter than to have done his job as a shaliach]. Tosphos (apparently)
was aware of this concern, and therefore held that even though if the
father dies we are not choshesh that she is an eishes ish [married
woman], while he is still alive, we are.
However it would seem to me that the Mechaber and even the Rema, are not
like this. First of all, the discussion occurs about a situation where
the father goes off to midinas hayam, and the mother or brothers marry
the girl off. Now clearly according to the first opinion, that there is
kiddushin, there is an understanding that the father's jurisdiction is
lifted to the point where it is as if he is dead. But if you take the
flow of the si'if - the statement is that there is kiddushin, then the
statement that if the father *comes* there is no need for another
kiddushin, then the other opinion that there is no kiddushin and no
miyun is necessary. Now on which bit is that last piece commenting?
There are two alternatives 1) there is never considered to be any
kiddushin (even if, for example, the father goes, the mother marries
her, *then* the father dies in midinas hayam. ie the fact of the
father's existence was enough to prevent the kiddushin taking, and for
the kiddushin to be valid the mother would need to do the marriage again
after the father's death); or 2) the fact that the father has returned
and resumed control retrospectively nulifies the kedushin, ie because it
turns out that the relinquishment of control was only temporary and
terminated, therefore the kedushin is never considered valid [Of course
this is tricky, because it would seem to be a breyra issue, and it is
difficult to work out whether we are dealing with a d'orisa or a
d'rabanan here - the kiddushin is clearly d'rabbanan, but the power of
the father is d'orisa].
But given that the final statement of the Mechaber is in opposition to
the position of the Ran and Tosephos, because they do not consider her a
p'nuah [single girl] because of their concerns, it would seem to me that
2) is the correct reading of the siman, so that, if he is never able to
come and retake control then the kiddushin would be a good
kiddushin. And the logic of such a position can be traced directly to
the pasuk and the idea tha the father must be in a position to "give"
the daughter - both to effectuate kiddushin and to be believed that he
has done so.
And again, as I indicated in my original post, the story brought by the
Rema that if he gave over custody and control to his wife before eidim,
he no longer was in a position to alter the course of events would seem
to me to support this position. In the normal course of events, where
the father is physically present, he is given the authority to "give"
his daughter, and in order to relinquish this right, he needs to do so
in front of eidim. And once this is done, then he no longer has that
power. But in a situation where he is overseas, he does not have that
power, and there is even the possibility of the mother/brothers stepping
into the breach with the full powers they usually only obtain after his
death (subject to restrospective nullification).
In our case, we have a situation (or I imagine we do) where the child is
the subject of a custody order and in that sense is under the direction
and control of the State. The extent of this power, I suspect, would be
demonstrated by the fact that, supposing the mother died, and even if
there were no other relatives, I would doubt very much that the court
would give custody to a man who had married off his daughter (besides
everything else, they would have reason to fear that he was likely to,
from their perspective, given that they certainly would not recognise
the marriage, procure and provide a minor for sexual purposes, and i
would suspect that they would feel that even foster parents would be
safer than that). Even if there is no custody order, if this is a
situation where the father and daughter are in separate countries,
especially if the country in question might well prevent him from having
access, or even setting foot on its soil, it would seem that not only is
there no control at present, but there is no likelyhood of there being
any. ie the father does not have, and will not have at least until his
daughter is a bogeres, the power to "give" her to the husband of his
choice.
On that basis I was wondering whether perhaps both the power to effect
kiddushin, and the father's ne'manus might not in fact be non-existent,
ie it was never granted by the Torah in the first place, and that in
effect what the father is trying to achieve is an extension of his
powers into areas not sanctioned by halacha.
Hope this helps answer the question to those who have asked.
Regards
Chana
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From: <sbechhof@...> (Yosef Bechhofer)
Date: Sun, 18 Jun 1995 19:06:58 -0500 (CDT)
Subject: Re: Kiddushei Ketana
Akiva Miller write that he suspects that the girl might be raped to
effect Kiddushin. That a girl could be raped by a masked stranger is
unlikely. That this would leave no physical evidence is even more
unlikely. That two Jews could witness this, standing idly by and not be
called Resha'im is an Halachic impossibility (they transgress several
prohibitions by not saving her). The father would have no cefdibility,
therefore, to claim such occured.
Regarding (I think Joseph Steinberg's) challenge that a takana such as I
proposed would no good if someone such as Goldstein (shem reshaim
yirkav) ran off to Africa, is not necessarily true. A takana applies to
all those who come from a locale, regardless of where they are presently
(chumrei makom shebah mesham), so any money he would accept in Africa
for his daughter would be rendered hefker as well.
Besides: This takana can simply be extended over the entire world!
Yosef Gavriel Bechhofer
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From: <jeremy@...> (Jeremy Nussbaum)
Date: Wed, 28 Jun 95 10:15:46 EDT
Subject: Re: Marrying off Daughters
> >From: <icb@...> (Israel Botnick)
> Regarding the suggestion that husbands relinquish their rights to marry
> off their daughters, I understood the suggestion as saying that just
> as a husband (at the time of marriage) can relinquish his right to inherit
> his wifes fortune, so too he can relinquish his right to marry off his
> daughters. My objection is, that the gemara says that the reason the
> husband can give up the inheritance, even though the torah says that a
> husband inherits his wife, is because by monetary matters, a condition
> can be stipulated even if it goes against the torahs rules. But by non-
> monetary matters, that is not the case. (The means of relinquishing the
> inheritance is through a tnai(condition), not through a vow).
That is the difference. You may not enter into a marriage, whose
parameters are defined by the Torah, with CONDITIONS that are against
those defined by the Torah. Once in that marriage, you may take a vow
that effectively relinquishes some of those conditions.
> Tosafot in the fifth perek of masechet Kesubos defines the concept of
> *Masneh al mah shekasuv batora* as meaning that one cannot attach a
> condition to an act, if it will will alter the torahs definition of a
> certain concept. Getting married on the condition that the brother in law
> will not perform yibum (levirate marriage), or that the husband will not
> divorce his wife, or that the husband will not inherit the wife, all fall
> under this category since this would be creating a marriage that is
> different than the torahs concept of marriage (where yibum/chalitza are
> required, the marriage can be ended with a divorce and the husband
> inherits the wife ...). The same would apply to setting a condition that
> the husband cannot marry off his daughters. It is true that the husband
> does not have to marry off his daughter, but relinquishing this capability
> is altering the torahs concept of marriage
> which includes certain rights and responsibilities that the to-be parents
> have WRT their children. The father can marry off his daughter, accept a
> divorce for her in some cases, he is entitled keep objects that she finds,
> and he can nullify her vows. Knocking off one of these is altering the
> torahs definition of a father/daughter relationship. (not to mention the
> fact that it would alter other torah laws based on this right, such as the
> fathers reliability that he married off his daughter).
It seems to me that you have demonstrated the possibility that a
marriage entered to on condition of not marrying off one's daughters may
be invalid. It is not obvious, since the examples are all acts that are
automatic at some point (yibum if he dies childless, divorce if e.g. his
wife is seduced, inheritance if the wife dies) while marrying off one's
daughers is always optional. Thus it is not necessarily the case that
one may not conditionalize away his rights, just that he cannot change
the (automatic) outcome of certain situations that may arise.
> > A similar situation is the gemara in kidushin which says
> that if a father sells his daughter as an ama ha-ivria(maid servant),
> her master has the option of marrying her. The gemara continues that
> if she is sold on the condition that the master will not marry her,
> the condition is void because it is a *Tnai al mah shekasuv batora*
> - it is altering the torahs definition of an ama ha-ivria which includes
> the option of the master marrying the maid servant.
This is a better example, but still different. In this example, it may
be that a primary part of a father selling his daughter is that a
marriage may result from it, and that otherwise it is a hardship and an
unreasonable temptationf for her and for her master.
Jeremy Nussbaum (<jeremy@...>)
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End of Volume 20 Issue 29
